SC2683

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV (EP) NO. 3 OF 2024

WESTLY NUKUNDI NUKUNDJ
Applicant

AND
STEVEN PIM
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

WAIGANI:  KANDAKASI DCJ
17 DECEMBER 2024; 14 JANUARY 2025

CONSTITUTION – Election petition under the Organic Law on National and Local Government Elections (Organic Law on Elections)– Winning candidate dying while petition was heard and decision reserved – Application of s104(2)(g) and s106 of the Constitution to election petitions – Interpretation of – Differing submissions – Not merely an important and meritorious point of law raised but an important Constitutional Law point raised that needs to be settled by the Supreme Court – Review warranted  – Leave for review granted.

 ORGANIC LAW - Organic Law on National and Local Government Elections – Election petition under s208 - Prayer for relief – Primary and alternative reliefs – Whether trial judge can grant alternative relief without giving any reasons for not granting primary relief sought - Meritorious point of law raised – Additional good ground for judicial review – Leave granted. 

SUPREME COURT – Practice and Procedure - Application for Leave to Review final decision on election petition – Relevant factors for consideration  - Review process distinct and separate from appeals - Proposed grounds for review must be proper grounds for review and not appeals  - Proper test - Whether there is an important meritorious point of law to be determined and if on facts whether there is a gross error of fact clearly apparent or manifested on the face of the evidence before the Court –Standard to meet.

The Applicant applied for leave to file for review of a decision of the National Court upholding his election petition against the Electoral Commission (the Commission) declaring the Second Respondent, has the winner of an electorate in 2022 National General Elections. The main allegations were errors and omission by the Commission’s servants and agents in terms of an unlawful exclusion of two ballot boxes containing 2006 votes and completion of the election processes by a person who was no longer a duly appointed Returning Officer (RO) for the electorate. The RO’s appointment was revoked during the counting of votes and before declaration of the results.  The learned trial Judge found the grounds and the factual basis for the petition were made out.  However, instead of granting the primary relief of a recount of the votes pleaded and sought by the Applicant, the learned trial Judge decided to order a by-election without giving any reason.  A critical part of the case before the learned trial Judge was the passing away of the First Respondent.  He died after a completion of the trial of the substantive matter and a decision on that was pending. On the learned trial Judges invitation, the Commission argued for a by-election based on s104 (2) and s106 of the Constitution, while the Applicant argued for a grant of the primary relief he had pleaded and prayed for in his petition.  

The Commission argued that the provisions of s104(2) and s106 of the Constitution clearly provides for a vacancy of the seat held by a member of Parliament who dies in office, and which must be filled through a by-election.  Hence, when the First Respondent passed on in this case, the election petition abated. The learned trial Judge therefore correctly decided in favour of a by-election. Additionally, the Commission submitted this is an inappropriate case for review as it does not present any important point of law that has merit, no apparent gross error on the face of the record and exceptional circumstances to warrant a grant of the Application by reason of which the application must be dismissed. Further the Commission argued the completion of the election process by a person who was not a duly appointed RO supported the decision to go for a by-election. Those submissions represented a complete U-turn by the Commission after having argued for the opposite in its own failed application before a different judge against the same decision. The Commission gave no good reason for its U-turn.

On the other hand, the Applicant argued against the Commission’s arguments and pointed out that the election process and more so, challenges against election results are mandated under the Organic Law on National and Local-level Elections (the Organic Law on Elections) which require proper consideration and determination by the Supreme Court for current and future guidance of the Commission, the Courts and the country.  This coupled with the learned trial Judge not giving any reasons for not granting the primary relief prayed for, which is apparent on the face of the record or evidence presents exceptional circumstances, which warrants review by the Supreme Court.  Accordingly, the Applicant argued for a grant of his application with costs.

Held:

1.	A party is not entitled to change a position taken in an earlier case unless, there has been a change in the prevailing facts or circumstances warranting a change.  In this case, there was no change in the relevant facts and circumstances to allow for the Commission to change its position from the one presented before the earlier Judge.
2.	An important point of law that has merit as to the proper interpretation and application of the provisions of s104(2) and s106 of the Constitution having due regard to the provisions of the Organic Law on Elections, namely whether the death of a Member of Parliament (MP) whose election is the subject of an election petition automatically abates the petition and a by election must be ordered was presented.
3.	Consistent with the well settled law that all decision makers are required to give reasons for their decision, the learned trial Judge was required to give reasons for his decision to order a by-election as opposed to the primary relief of an order a re-count of the votes that was pleaded. 
4.	On the face of the record, it was apparent that the learned trial Judge did not give any reason for his decision to order a by-election as opposed to the primary relief pleaded and prayed for which constitutes a serious error of law warranting correction by the Supreme Court on review.
5.	The revocation of the RO’s appointment is inconsequential and would not be an impediment to an order for a recount of the votes.
6.	The foregoing gives foundation for a finding that the case presented exceptional circumstances warranting a grant of the application for leave for review. 
7.	The application for leave was accordingly granted.

Cases cited

Aihi v Isoaimo (2013) SC1276
Application by Toffamo Simang Mionzing [1992] PNGLR 122
Avia Aihi v The State (No 2) [1982] PNGLR 44
Avia Aihi v The State [1981] PNGLR 81
Burns Philp v Rose Kekedo [1988-89] PNGLR 122
Electoral Commission of Papua New Guinea v Kaku (2023) SC2388
Electoral Commission of Papua New Guinea v Westley Nukundi Nukundj (2024) SC2602
Electoral Commission v Pastor Bernard Kaku (2019) SC1866
In re Constitution Section 19(1) - Special reference by Allan Marat (2012) SC1187
Independent State of Papua New Guinea v Colbert [1988] PNGLR 138
Kasap and Yama [1988-89] PNGLR 197
Lee & Song Timber (PNG) Co Ltd v Nathanael Burua (2003) N2404
Malipu Balakau v Paul Torato [1983] PNGLR 242
Micah v Lua (2015) SC1445
Mission Asiki v Manasupe Zurenuoc & Ors (2005) SC797
Ombudsman Commission v Peter Yama (2004) SC747
Godfrey Niggints v Henry Tokam v & 2 Ors [1993] PNGLR 66
Pius Sankin & Ors v Papua New Guinea Electricity Commission (2002) N2257
Polye v Manase (2021) N8792
Re Gegeyo v Minister for Lands and Physical Planning [1987] PNGLR 331
Sammy Lodge Ltd v Sipison (2024) SC2618
Simon v. Kapris (2023) SC2395
Sir Arnold Amet v Peter Charles Yama & Electoral Commission (2010) SC1064
Sir John Pundari v Peter Yakos (2023) SC2345
Southern Highlands Provincial Government v Kalu (2016) SC1568
State v Gelu, Solicitor General (2002) N2322
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906
Wapi v Dr. Eric Kwa & 5 Others (2022) N10362

Counsel:      

Mr. B. Tamarua for the applicant
Mr. R. Williams for second respondent

1.	KANDAKASI DCJ: 	This is an application for leave for judicial review by Mr. Westly Nukundi Nukundj (Mr. Nukundj) of a decision by the National Court in EP No. 66 of 2022 (the Decision).  The application amongst others, presents this Supreme Court for the first time a Constitutional point or question.  That question concerns the proper interpretation and application of s104(2)(g) and s106 of the Constitution following the death of the First Respondent, Mr. Steven Pim (late Pim) whose election as member of Dei Open Electorate in the 2022 National General Election was challenged by Mr. Nukundj through an election petition filed under s208 of the Organic Law on National and Local-Level Government Elections (Organic Law on Elections).  Additionally, the application raises the question of the learned trial Judge’s power to grant an alternative relief to one that was primarily sought and prayed for without providing any specific reason for it.

2.	Learned counsel, Mr. Tamarua for Mr. Nukundj, submits the questions presented are meritorious important points of law.  As for the failure to provide reasons for not granting the primary relief sought, learned counsel submits there is a gross error clearly apparent, which is not without merit. Further learned counsel submits, this case presents exceptional circumstances in that a winner of the election died after the conclusion of the trial and was pending decision.  This requires an interpretation and application of the provisions of s104(2)(g) and s106 of the Constitution in the context of a pending election petition filed under the Organic Law on Elections. This raises the relevant question of, whether the death of a Member of Parliament (MP) whose election is the subject of an election petition automatically abates the pending petition, and a by-election must be ordered. The Supreme Court needs to interpret the relevant Constitutional provisions and answer the question presented, which is necessary for present and future guidance.  Given these, learned counsel submits, it is necessary in the interest of justice for leave to be granted. Finally, learned counsel submits his client’s application, meets all the requirements for a grant of leave for judicial review.  Therefore, he submits his client’s application should be granted. 

3.	Opposing the application, learned counsel Mr. Williams for the Second Respondent, the Electoral Commission (Commission) submits the provisions of s104(2)(g) and s106 of the Constitution are clear and unambiguous. No interpretation is thus required. As for the failure to give reasons for the Decision, whilst he concedes no specific reasons was given for the grant of the alternative relief, he submits the learned trial Judge did give reasons for his decision which was within his discretion to do so.  Learned counsel for the Commission therefore, submits, no important point of law that has merit is presented and ultimately Mr. Nukundj has failed to meet all the requirements for grant of leave for judicial review and his application must, therefore, be dismissed.

The relevant issues

4.	From the parties’ arguments, it is clear, the issues for the Court to determine are as follows:

(1)	Does this case present an important and meritorious question on the proper interpretation of the provisions of s104(2)(g) and s106 of the Constitution in the circumstances of this case?

(2)	Is it apparent on the face of the record that the learned trial Judge has not given any reason for deciding against the primary relief of a recount of the votes that was pleaded and prayed for?

(3)	Has Mr. Nukundj otherwise met the requirements for a grant of leave for a review of the Decision?  

Relevant factual background and facts

5.	The late Pim was declared the elected Member of Parliament for the Dei Open Electorate in the 2022 National General Elections. The Applicant, Mr. Nukundj was also a candidate in the election for the Electorate.  He petitioned the late Pim’s election in the National Court through EP No. 66 of 2022. His main allegations were against the Commission only with nothing against the late Pim. In his petition, Mr. Nukundj alleged various errors and omissions committed by the Commission or his servants or agents during the counting and declaration of the result of the election. The errors or omissions alleged were:

(1)	the RO erroneously set aside two ballot boxes when the ballot papers in them were lawfully cast and there was no objection taken to the Ballot Boxes being admitted to scrutiny by a scrutineer or by a polling officer who polled with the Ballot Boxes.
(2)	the Returning Officer (RO) failing to comply with the Commission’s directions to count the said two ballot boxes.
(3)	the Commission erred by accepting a return of the writ to the Governor General in circumstances when the person who made the declaration and signed the writ was not an RO.
(4)	a Mr Jameson Nukundi’s appointment as RO was revoked on 5 August 2022 and he was not the RO when he conducted the eliminations and declared the first respondent elected on 5 August 2022. 
(5)	the RO declared the result of the election despite the Commission’s directions for him not to do so.
(6)	the above errors or omission each affected the result of the election by 2, 070 ballots which was more than the winning margin of 943 votes.

6.	 Based on the foregoing, Mr Nukundj sought the following main reliefs:

“1.	An order for a recount of ballot papers in the election of the Dei Open Electorate, including in the recount the two ballot boxes for Klenembo 3 Ward.
2.	Alternatively, an order that the declaration of the first respondent as elected is invalid, null and void. 
3.	An order that the first respondent was not duly elected.
4.	A declaration under section 212 (1) (h) of the Organic Law that the election for Dei Open Electorate is absolutely void.
5.	An order for a by-election for the Dei Open Electorate.”

7.	Following a dismissal of objections to the competency, a trial of the petition took place and concluded on 24 June 2023 with judgment reserved.

8.	Before judgment could be delivered, late Pim died on or about 24 September 2023. The trial Judge requested for, and on 08 December 2023, heard submissions from counsel on, whether there was any utility in delivering the reserved judgment given the provision of s104(2)(g) and 106 of the Constitution. On 13 December 2023, the trial Judge delivered an oral decision.  The trial Judge ruled, there was utility in the court delivering a decision on the petition in circumstances where the trial was completed with decision pending when late Pim died and that the allegations in the petition were against the Electoral Commission. The learned trial Judge indicated then that, his written decision would be subsumed into the final decision.

9.	The trial Judge delivered his final Decision on 7 February 2024 orally. The Decision upheld the petition and ordered a by-election for the Dei Open Electorate to be conducted by the Commission, forthwith.  The Court has not been assisted with any written version of the decision.

10.	Aggrieved by the decision to allow for the trial to continue despite the death of the late Pim, the Commission sought to have the decision reviewed. In its application for leave for review, the Commission claimed the learned trial Judge fell into error:

(1)	in continuing the trial of the petition when late Pim had died which created a vacancy in the Parliamentary seat for the Dei Open Electorate by virtue of s104(2)(g) Constitution. That brought into operation the provisions of s106 of the Constitution which calls for a by-election.

(2)	in failing to conclude that upon the death of a Member of Parliament, s 104(2)(g) and s106 of the Constitution, creates a vacancy and any current election petition concerning the electorate and the deceased member of Parliament, abates.

11.	The then respondent Mr. Nukundj opposed the application and submitted, amongst others, that the application for leave to review should not be granted because it was filed outside the prescribed time limit of 14 days.  That timing commenced from the date the trial Judge delivered his decision orally on 13 December 2023. However, the application for review was filed on 21 February 2024, which was well passed the time limit of 14 days.

12.	In his decision on the application now published as Electoral Commission of Papua New Guinea v. Westley Nukundi Nukundj (2024) SC2602, his Honour Hartshorn J., accepted Mr Nukundj’s submission on the question of time bar and decided to dismiss the Commissions application.  His Honour did not stop at that. He went on to consider, the submissions on the effect of s104(2)(g) and s106 of the Constitution and ultimately decided to dismiss the application for leave for review.

13.	On 20 February 2024, Mr Nukundj, separately filed this application for leave for judicial review, which I heard on 18 December 2024 and reserved a decision on the application to 31 January 2025.

Consideration of the issues presented

14.	I will deal with all the issues presented together. To do so, it is necessary to first remind myself of the relevant law governing applications for leave for review of decisions of the National Court sitting as the Court of Disputed Returns in election petitions.  

(i)	Relevant Law

15.	Learned counsel for Mr. Nukundj relies on the decision of Hartshorn J in Sir John Pundari v. Peter Yakos (2023) SC2345 as stating the law on an application for leave to review a decision in an election petition. There, his Honour stated:

“The criteria for the exercise of this court's discretion on an application for leave to review an election petition are whether there is an important point of law to be determined and that it is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court: Eric Ovake Jurvie v. Bony Oveyara (2008) SC935 (Injia DCJ).
....
...given the decision in Hagahuno v. Tuke (supra) and the other matters referred to, in my view the criteria for the exercise of this Court's discretion on an application for leave to review an election petition or decision made therein, are whether there is an important point of law to be determined which is not without merit or whether there is a gross error as to fact clearly apparent or manifested on the face of the evidence before the Court and in any event, whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.”

16.	In my view, an authoritative statement of the law is by the full Supreme Court in its decision in Electoral Commission of Papua New Guinea v Kaku (2023) SC2388, per Kandakasi DCJ, Mogish J and Shephard J.  There, the Court noted that, s220 of the Organic Law on Elections prohibits appeals against decisions in election petitions.  Going by the decision in Malipu Balakau v. Paul Torato [1983] PNGLR 242, per the majority Kidu CJ and Andrew J, the Court noted the review process under s155 (2) (b) of the Constitution is not prohibited by s220.   Also, going by the decisions like the one in Burns Philp v. Rose Kekedo [1988-89] PNGLR 122, per Kapi DCJ, Amet J and Cory J, the Court noted the settled law that a review is different from an appeal and is limited only to the decision-making process and not the merits or the demerits of the decision itself: See also Aihi v Isoaimo (2013) SC1276, per Kandakasi J, Hartshorn J &Yagi J.   The Court then noted the leading decisions generally on review namely, the twin decisions in Avia Aihi v. The State [1981] PNGLR 81 and Avia Aihi v. The State (No 2) [1982] PNGLR 44, per Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J and Kapi J. These two decisions enunciated the criteria that must be met for a grant of leave and ultimately a review on the merits.  To get to that point an applicant has the burden to make out a case and the Court must find on the merits of the application that the applicant has demonstrated “exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity”. 

17.	As the Court went on to note, subsequent decisions of both the National and Supreme Courts have followed the above principles. One such decision was the decision in Independent State of Papua New Guinea v. Colbert [1988] PNGLR 138, per Kapi DCJ, Bredmeyer J and Amet J.  That decision set out the applicable case law up to that point and concluded that the discretionary power of the Court should be exercised only where: 

(1)	it is in the interest of justice to do so; 
(2)	there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest or the case is of special gravity; and  
(3)	there are clear legal grounds meriting a review of the decision. 

18.	Further, as the Court went on to note,  subsequent decisions, such as the decision in Kasap and Yama [1988-89] PNGLR 197, per Kidu CJ, Kapi DCJ and Woods J; Application by Toffamo Simang Mionzing [1992] PNGLR 122, per Kidu CJ, Konilio J, Sheehan J, Brown J and Salika J, have reaffirmed the above position of the law and have held that an applicant in an election matter need only show that the ground relied upon satisfies the criteria set out in PNG v. Colbert (supra) as noted above. 

(ii)	The parties’ submissions

19.	Learned counsel for Mr. Nukundj submits his client’s application meets the criteria for a grant of leave.  In so submitting he points to:

(1)	the fact that the need for a proper interpretation and application of the provisions of s104(2)(g) and s106 of the Constitution in the particular circumstances of this case presents an important legal point that is not without merit;
(2)	this case presents for the first time, a case in which a MP whose election is the subject of a challenge lawfully by an election petition under the Organic Law on Elections dies after the completion of the trial of the petition but before a final decision.
(3)	on the face of the record or judgment the learned trial judge did not consider and did not give any reasons for not granting the primary relief sought which was for a recount of the votes or ballot papers which contained 2006 votes and instead ordered a by-election which is a serious and manifest error on the face of the record or judgment; and
(4)	the above factors present exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity which warrant review in the interest of justice for which purpose leave should be granted.

20.	Opposing the application, learned counsel for the Commission submits the provisions of s104(2)(g) and s106 of the Constitution are clear.  They require no art of interpretation. As for not granting the primary relief sought, learned counsel concedes no specific reason was given for not considering and deciding against a grant of the primary relief. However, he argues the learned trial Judge did give reasons for his decision and granted one of the reliefs Mr. Nukundj sought in his petition.  Consequently, counsel submits the case does not meet the criteria for grant of leave for judicial review.  Accordingly, he argues for a dismissal of the application with costs.

Consideration & determination of issues
(i)	 important meritorious legal point for determination 

21.	I note the issues presented in this application were already presented earlier on in the earlier failed application by the Commission before his Honour, Hartshorn J in his decision in Electoral Commission v. Nukundj (supra).  There, after considering the parties’ submissions, his Honour concluded at [18]:

“I am satisfied in this instance that it has been shown that it is arguable that the primary judge has fallen into error as submitted by the applicant and that it has been established that there is an important point of law to be determined which is not without merit.”

22.	Thereafter, his Honour considered the next question of whether the applicant established any exceptional circumstances showing a manifestation of substantial injustice and also that a review was warranted in the interests of justice. The Commission submitted these factors existed. At the same time, it submitted, exceptional circumstances should not be required by the Court because such a requirement is subjective.

23.	His honour noted, a determination of the question of whether exceptional circumstances exist is a subjective finding.  Further, his Honour noted, it is not, unusual for the courts to consider a determination of whether certain factors or criteria are met on a subjective basis. His Honour then considered numerous statutes which require a court to make a subjective finding and gave examples of the provisions providing for special circumstances such as the provisions of s18 of Supreme Court Act; s63(4), s65(2) and s65(6)(a)  of the Lawyers Act; s20(3) and s30(6) Land Act and other provisions such as the provisions of s77(12)(b) and s97(23)(c) Goods and Services Tax Act and s14(5) Claims By and Against the State Act.  Finally, his Honour considered the Supreme Court’s decision in the matter of Southern Highlands Provincial Government v. Kalu (2016) SC1568. Based on these considerations, his Honour held at [23]:

“I am satisfied therefore that it is not unusual and not inappropriate for this Court to determine whether certain factors or criteria are satisfied, on a subjective basis.”

24.	Applying the law as his Honour had considered to the case before him, his Honour noted the absence of any evidence and any submissions to assist the Court to find exceptional circumstances existing which manifested substantial injustice.  Then most importantly, his Honour noted:

“A by-election is what the applicant [the Commission] submits should occur consequent upon the death of Mr. Pim and is what would likely be ordered if a substantive review of the Decision was successful. So if a substantive review of the Decision was successful, the result would likely still be the same as the result ordered by the primary judge in the National Court – a by election.”

25.	As can be seen from the position the Commission took in its own application and the position it is taking in this case, the Commission has made a complete U-turn.   That is turning from a position of arguing for the presentation of a meritorious legal point or a question to be determined existing and the presentation of exceptional circumstances to warrant a review in the present case to the extreme opposite.  The Commission has not offered any reasonable explanation for this complete U-turn.  This, in my view, the Commission is not entitled to do and more so when this Court has already accepted the argument on the presentation of a meritorious important legal point to be determined.  That issue in my view has been finally determined.  The common law doctrine of res judicata as adopted and applied in our jurisdiction applies here: See Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906.

26.	Even if the issue was not determined by Hartshorn J, a party can not simply change from one position in terms of his or her arguments without giving any proper reason and or explanations warranting the change.  Included in any such explanation or reason should be, any change in the facts or circumstances that previously prevailed to a subsequently, different set of facts or circumstances.  In the present case, as mentioned, the Commission has not provided any explanation or evidence that clearly establishes a change in the relevant facts or circumstances that had earlier prevailed to the present. The evidence is nothing as changed.  The only change is Mr. Nukundj is now the applicant in this application for leave for judicial review and the Commission is the only respondent opposing the application. 

27.	Looking at the issues on my own part, I agree with Hartshorn J., that an important legal point that is meritorious on a proper interpretation and application of the provisions of s104(2) and s106 of the Constitution in the context of a pending election petition is presented.  This is apparent from what is provided for, and, not provided for in these provisions.   Relevantly, s104 (2)(g) and s106 read as follows:

“104. Normal term of office. 
...
(2) The seat of a member of the Parliament becomes vacant— 
...
(g) on his death.
...

“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 – [upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament]), 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.”

28.	A combined reading of these provisions makes it clear that, if a member of Parliament dies during the currency of his or her term as a MP, his or her seat becomes vacant.  To fill that vacancy a by-election must be conducted unless the death occurs:

(1)	at the end of the term of the relevant Parliament; or
(2)	12 months before the end of the term of the relevant Parliament; or
(3)	Writs for the next general election has been issued.
 
29.	This is clearly understandable and straight forward in a case where a MP’s membership in Parliament is beyond question. But how about cases in which a MP’s membership is challenged legally as is done through an election petition, which is a process provided for in detail by another Constitutional law, namely the Organic Law on Elections?  One view would be as argued for by learned counsel for the Commission. Another view equally open is this, a MP whose membership in Parliament is the subject of a challenge by an election petition, is not certain and is therefore, conditional on the election petition being determined in the relevant MP’s favour.  If the detailed election petition process under the Organic Law on Elections were to terminate upon the death of a MP whose election is the subject of an election petition, the legislature could have expressly provided for it in the Constitution.  The fact of the matter is, the legislature did not provide for an automatic abating of a pending petition upon the death of a MP of whose election is under challenge by a petition.  

30.	The alternative view is consistent with the accepted principle in statutory interpretation that, the legislature or Parliament does not make any mistake when enacting laws.  The duty of the Court, therefore, is to interpret and apply any conflicting or defective legislation in a way that it makes sense and is harmonious to giving effect to Parliament’s intend.  In several of my National Court decisions I referred to that principle.  One such decision is in the matter of State v. Gelu, Solicitor General (2002) N2322, where I stated the law in these terms:

“This proceeds on the well-accepted principle of statutory interpretation that Parliament makes no mistake in enacting provisions of an act of Parliament. Indeed, the need to harmonise provisions of what appears to be apparent conflicts in the provisions of an Act of Parliament has been acknowledged in the judgement of the Deputy Chief Justice in Akipa & Ors vs. Lowa & Ors (supra).”

31.	 Learned counsel for the Commission’s submissions are effectively asking this Court to read into s106 of the Constitution a termination or abating of any election petition filed and pursued under the Organic Law on Elections upon the death of an MP whose election is the subject of a challenge by an election petition.  Doing so would get the judiciary into the role of Parliament to enact laws instead of interpreting and applying what Parliament having considered all things, decided to provide for or not provide for in either the Constitution or the Organic Law on Elections.  The doctrine of separation of powers would clearly prevent this Court from reading into s106 what is argued for by the Commission. 

32.	The lack of any provision being made to cater for the kind of occurrence in this case, in my view, is deliberate and not an oversight by the legislature.  Here is why.  Elections and challenges of election outcomes are specifically governed by the Organic Law on Elections and not the Constitution.  Until a final decision on a petition is made, the election of a MP whose election is challenged will remain uncertain.  An unsuccessful petition would result in a dismissal of the petition and effectively result in confirmation of the relevant MP’s election. On the other hand, a successful petition could result in a declaration that the election is null and void with the relevant MP declared not duly elected and:

(1)	declare the petitioner, or another person as duly elected; or 
(2)	order a recount of the ballots and make further orders based on the results of the recount; or
(3)	order a by-election be conducted by the Commission.

33.	Given these possibilities, the legislature, in my view, did not contemplate an election petition process automatically abating upon the death of a MP whose election, is the subject of an election petition.  That would be a matter for the court of disputed returns and the parties in each case to address and resolve.  This is sensible, given that the basis for such challenges compared to each case would be different and each petition would turn on its own factual circumstances.  Given this, the legislature, in my view, deliberately chose not to make any provision for an automatic abating of an election petition upon the demise of a MP, whose election is the subject of a challenge through a pending election petition. 

34.	Whether the view as advanced by the Commission or the alternative view as I discussed above is correct, requires the full Supreme Court’s consideration and final decision.  This application, therefore, presents an important meritorious legal point to be determined. A determination of that legal point is necessary to provide clarity in the law from hereon after for the guidance of all concerned, including most importantly, the Commission.  This alone in my view would warrant a grant of the application for leave without more.

(ii)	Apparent error on the face of the record

35.	However, for completeness I turn to the remaining issues. The first of the remaining issues is the claim of, apparent lack of any reasons given by the learned trial Judge for not considering the first relief sought and instead, grant the alternative relief of a by-election.

36.	As already noted, Nukundj’s petition was based primarily on allegations of errors and omissions attending the counting and declaration of results.  Included principally in the petition was an allegation of two ballot boxes containing about 2, 070 votes were unlawfully and improperly excluded. The evidence adduced at the trial as found by the learned trial Judge, established the relevant ballot boxes contained 2006 votes as opposed to 2070.  The evidence adduced at the trial and as also found by the learned trial Judge established that, the Commission had by letters dated 31 July 2022 and 03 August 2022 directed the RO to admit the relevant ballot boxes into the counting, but the RO had refused to do as directed and proceeded to declare the late Pim as the winner of the election on 05 August 2022.  By that time again as established by the evidence as found by the learned trial Judge, the RO’s appointment was revoked, and he acted without lawful authority.

37.	In his affidavit in support of the current application Mr. Nukundj at [15] deposes: 

“The intention of the petition EP No 66 of 2022 was to make invalid the declaration that the First Respondent was the Member elect and resume the counting as it should have been. Since the two boxes contained 2006 votes, more than the 943-winning margin, if the counting was ordered by the Court, the actual and rightful winner would emerge.”

38.	However, the learned trial Judge, after having upheld the petition on all grounds, ordered for a by-election instead of a re-count of the boxes. This order Mr. Nukundj at [16] of his affidavits says:

“is unreasonable and inappropriate where it would cost more money and time again to conduct a by-election. The boxes are secured at the Kimininga 
Police Barracks and can be easily counted in less time and at minimum costs.”

39.	The oral decision delivered by the learned trial Judge gives reasons for his decision on his finding of the relevant facts.  He also gives reasons for finding for and upholding the grounds pleaded by Mr. Nukundj.  Unfortunately, the transcript of the oral decision does not disclose any mention or discussion of the reliefs sought by Mr. Nukundj in his petition generally or, specifically, on why the primary relief of an order for re-count of the votes could not be granted and instead, an order for a by-election was warranted. 

40.	Learned counsel Mr. Tamarua, of counsel for Mr. Nukundj submits and I accept that, it is well settled law in our system of justice for all decision makers, such as the Courts, tribunals and other public authorities who make decisions to give reasons for their decisions.   Counsel cited in support of that submission one of the many cases on point.  That is the decision of the Supreme Court in Micah v. Lua (2015) SC1445, per Cannings J, Makail J and Higgins J. There, their Honours’ considered [at 22] that: 
“It cannot be emphasized enough that the duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official's decisions: Joe Ponau v. Teaching Service Commission Disciplinary Committee (2006) N3059. If a decision-maker has a duty to accord natural justice, there is a duty to give reasons; and if no reasons are given, that means there are no good reasons, and the decision-maker will have acted in excess of jurisdiction. If there is no express duty to give reasons, the duty will be implied. Those principles were applied by the Supreme Court in Ombudsman Commission v Peter Yama (supra) and Mision Asiki v. Manasupe Zurenuoc (2005) SC797.”
41.	The Supreme Court’s recent decision in Sammy Lodge Ltd v. Sipison (2024) SC2618, per Kandakasi DCJ, Toliken J and Kaumi J (the Sammy Lodge case) is a recent restatement of the law.  That decision cited my noting in Wapi v. Dr. Eric Kwa & 5 Others (2022) N10362 that, “it is ‘trite law that every public decision maker is obliged to give reasons for their decision.” As the decision in the Sammy Lodge case also noted, in support of that proposition, I cited several decisions. That included my own single member Supreme Court decision in Electoral Commission v. Pastor Bernard Kaku (2019) SC1866.  There, I cited and quoted from my decision in Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404, where I discussed the law in the following terms:
“One of the minimum requirements of the principles of natural justice enshrined in our Constitution under s.59 (2) is the duty to act fairly, and in principle, to be seen to be acting fairly. This is in effect a codification of an old established principle represented by cases like that of R v. Sussex Justice; Ex Parte McCarthy [1942] 1 K.B. 256.
The need to provide good reasons for any decision-maker for a decision he or she makes is an important part of the principles of natural justice. For, a failure to give reasons has the potential to form the foundation for a suggestion or suspicion that the decision is without good reason. Lord Denning in General Electric Co. Ltd v Price Commission [1975] 1 C.R. 1 at 12 made that clear in these terms:
‘If it (the decision maker) gives no reasons in a case when it may reasonably be expected to do so, the Courts may infer that it had no good reason for reaching its conclusion and act accordingly.’”
42.	As the decision in the Sammy Lodge case noted, I was not alone in that view. Earlier decisions like the one in Re Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331 at [335] enunciated and applied these principles, which I re-echoed and applied in my earlier decisions in Pius Sankin & Ors v. Papua New Guinea Electricity Commission (2002) N2257. There, I stated:
“It is settled law that, a discretion that is vested in a decision-maker in a democratic society such as ours must be exercised on proper consideration as to the relevant facts and the law. There is no such a thing as unfettered discretion. Good reasons must be given for an exercise of discretion. A failure to do so may leave open the floodgate for all sorts of allegations, including allegations that the discretion was exercised for ulterior motives. For examples of authorities on this point, see The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246 and An Application of the NCDIC [1987] PNGLR 339.”
43.	Again, as noted by the decision in the Sammy Lodge case, I went by the earlier statements of the law and concluded:
“Providing reasons for decisions made by public authorities is a necessary element of being transparent unless the security of the nation or a statute specifically dictates or provides otherwise. Hence, I do not consider it appropriate that it should be left to the circumstances to dictate whether or not reasons should be provided for every decision by a public authority or tribunal. The reason for this is simple, unless good reasons are provided, a decision by a public authority or tribunal could be perceived as being arrived at unfairly and being actuated by such things as bias, bribery and so on and not necessarily on its merits.”
44.	Finally, as the decision in Sammy Lodge case noted, several other Supreme Court decisions reinforce and reiterate these principles. That line of decisions includes the decision in Sir Arnold Amet v. Peter Charles Yama & Electoral Commission (2010) SC1064, Ombudsman Commission v. Peter Yama (2004) SC747, Godfrey Niggints v. Henry Tokam & 2 Ors [1993] PNGLR 66, Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797 and Hon Ben Micah MP v. Rigo A Lua (supra). 

45.	Applying the law to the present case, the lack of any reason for deciding against a grant of the primary relief sought and instead, a grant of the alternative relief of, an order for a by-election, is an obvious and apparent error on the face of the record.  Given the relevant law on point, more so the basis and reasons for the need for all public decision makers to give reasons for all their decisions, this apparent lack of any reason given is a serious error of law which needs to be considered in the interest of justice by the Supreme Court including, what should become of the decision that has been arrived at without any reason given. 

(iii)	Exceptional circumstances

46.	Turning now to the next issue of whether a case of exceptional circumstances has been established, we start with the argument that was put by the Commission to this Court before Hartshorn J.   As noted, the Commission argued in favour of this case meeting the requirement of exceptional circumstances existed to warrant a review by the full Supreme Court. His Honour, Hartshorn J., held otherwise.  That decision turned on the Commission seeking the same relief as was granted by the learned trial Judge. Here is how his Honour dealt with the issue for exceptional circumstances at [24] – [25]:

“24. As to whether exceptional circumstances exist, in my view no evidence has been given or submissions made which would enable this court to find that in this instance there do exist exceptional circumstances or any exceptional circumstances showing a manifestation of substantial injustice.

25. In this instance, what is sought to be reviewed is a decision of the National Court which amongst others, ordered a by-election for the Dei Open Electorate. A by-election is what the applicant submits should occur consequent upon the death of Mr. Pim and is what would likely be ordered if a substantive review of the Decision was successful. So if a substantive review of the Decision was successful, the result would likely still be the same as the result ordered by the primary judge in the National Court – a by election.”
(Underlining supplied)

47.	I repeat what I said earlier about the Commission changing its position, more so the need for a change in the circumstances to warrant a change in position by the Commission.  Additionally, I note the only changes to what was prevailing before Hartshorn J are the following:

(1)	the Commission argues for no exceptional circumstances existing which is a complete U-turn from the claims and arguments it presented before Hartshorn J in support of its own application; 
(2)	the relief the Commission sought in its application was no different to the relief granted or ordered by the learned trial Judge, namely, an order for a by-election.  Here, however, Nukundj pleaded and prayed for the relief of and order for recount of votes before the learned trial Judge and now before this Court; and
(3)	the application for leave now before me is by Nukundj and not the Commission.

48.	Further I note, the following factors existed but were not highlighted in the Commission’s application before Hartshorn J:

(1)	Mr. Nukundj as the petitioner pleaded in his petition and argued for the primary relief of a re-count of the votes; 
(2)	the learned trial Judge decided to grant the alternative relief of by-election and not the primary relief sought without giving any reason for that;
(3)	the declaration by the RO of the late Pim as the winner of the election for the relevant seat in Parliament was unlawful given his refusal to include the two ballot boxes and the revocation of his appointment on 05 August 2022; 
(4)	Mr Nukundj’s evidence that, an order for a recount of the votes including, the two ballot boxes that were wrongly and unlawfully excluded despite repeated instructions from the Commission, would be lot cheaper and convenient, is not contested by any evidence from the Commission; and
(5)	as the learned trial Judge found, which is not contested by the Commission, the two ballot boxes unlawfully and wrongly excluded contained, 2006 votes which would have affected the results given, the winning margin of 943 votes.

49.	The Commission through its learned counsel’s submissions argued that, since the election was conducted by a person who was not an RO, a recount of the votes will not solve the problem, but a by-election will.  This argument ignores the fact that the relevant RO lawfully conducted the elections from the beginning until his refusal to include the two ballot boxes containing 2006 votes and his eventual revocation on 05 August 2022.  It is settled law that a subsequent revocation of one’s appointment does not have any retrospective effect against decisions, steps or actions taken by a person whose appointment is later revoked.  To have such a retrospective effect, there must be specific legislative foundation for it: see In re Constitution Section 19(1) - Special reference by Allan Marat (2012) SC1187.  The Commission did not assist with any submissions pointing to any legislative provision supporting its submission. 

50.	It is a well know practice of the Commission to appoint and revoke the appointment of ROs and other election officers in many elections.  This does not have any retrospective effect on the continuation of the election process in each case.  Usually, the new officer continues from where the previous RO or officer has left of: See for examples Simon v. Kapris (2023) SC2395 and Polye v. Manase (2021) N8792.   In this case, if a recount of the votes was the relief granted or is to be granted on the substantive review, there will be no problem with the new RO picking up from the last action or step lawfully taken by the previous RO.  Hence, the revocation of the appointment of the RO is inconsequential and cannot be an impediment to a recount of the votes if the relief of an order for recount of votes were to be granted by the Supreme Court in the substantive review application.

51.	In my view, the factors listed at [47] and [48] above, as well as the important and meritorious legal point on the proper interpretation and application of the provisions s104(2) and s106 of the Constitution in the context of the relevant provisions of the Organic Law on Elections dealing with election petitions and the error of law apparent on the face of the record present exceptional circumstances warranting a grant of leave for review. Accordingly, I uphold Mr. Nukundj’s application and grant leave for review as sought.   That will be with an order for cost to follow the event against the Commission to be taxed, if not, agreed.

Judgment and orders accordingly.
________________________________________________________________
Lawyers for the applicant: Lomai & Lomai Attorneys	
Lawyers for the respondent: Niugini Legal Practice