SC2756

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV (EP) NO 3 OF 2024

WESTLY NUKUNDI NUKUNDJ
Applicant

V

HON STEVEN PIM
First respondent

ELECTORAL COMMISSION
Second respondent

WAIGANI: SALIKA CJ, CANNINGS J, 
YAGI J, MAKAIL J, KARIKO J

28, 31 JULY 2025

ELECTION PETITIONS – death of sitting member after trial in the National Court and before delivery of decision – decision of National Court delivered, ordering a by-election – application for review of National Court decision – objection to competency – whether Supreme Court has jurisdiction to hear the application for review – Constitution,  ss 104(2)(g) and 106. 

The successful candidate at an election, whose election was challenged through an election petition in the National Court, died after trial of the petition and before delivery of judgment. The National Court continued with the proceedings and upheld the petition and ordered a by-election. The petitioner was aggrieved by the decision to order a by-election and was granted leave to apply to the Supreme Court for review of the National Court decision and argue that the National Court erred by not ordering a recount of votes. The second respondent objected to the competency of the application, arguing that the Supreme Court lacked jurisdiction due to the combined effect of Constitution 104(2)(g) and s 106. 

Held: 

(1)	The seat of a member of the Parliament becomes vacant on his death by virtue of s 104(2)(g) of the Constitution, and a by-election must under s 106 of the Constitution be held to fill the vacancy.

(2)	A petition disputing the election of a member to the Parliament, abates upon the death of the member. 

(3)	The Supreme Court has no jurisdiction to hear an application to review a decision of the National Court on an election petition after the sitting member has died.

(4)	The objection to competency was upheld and the application for review was dismissed.

Cases cited
Nukundj v Pim & Electoral Commission, EP 66 of 2022, 7.2.24, Unreported
Simitab v Isifu (2023) N10480

Counsel 

R Tamarua, for the applicant
R William, for the second respondent

1.	BY THE COURT: This is our ruling on an objection to competency of an application to the Supreme Court under s 155(2)(b) of the Constitution for review of the decision of the National Court in an election petition. 

2.	The petition was brought by the applicant, Westly Nukundi Nukundj, challenging the election of the first respondent, Steven Pim, at the 2022 general election for the seat of Dei Open, Western Highlands Province. 

DEATH OF FIRST RESPONDENT

3.	A trial was conducted and the trial judge on 22 July 2023 reserved a decision. On 13 September 2023 the first respondent died. 

4.	The trial judge recalled the parties and received submissions on whether the National Court had jurisdiction to proceed to a decision on the petition. The applicant submitted that the National Court had jurisdiction and should deliver a decision. The second respondent, the Electoral Commission, submitted that the National Court had no jurisdiction due to the combined effect of ss 104(2)(g) and 106 of the Constitution.

Section 104(2)(g) states:

The seat of a member of the Parliament becomes vacant … on his death. 

Section 106 states:

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.

NATIONAL COURT DECISION

5.	On 23 February 2024 the trial judge delivered judgment, finding that the National Court had jurisdiction. His Honour upheld the petition, declared that the declaration and return of the first respondent was invalid, null and void and ordered that a by-election be conducted (Nukundj v Pim & Electoral Commission, EP 66 of 2022, 7.2.24, Unreported).

6.	The applicant is aggrieved by the order that there be a by-election. He claims that the National Court erred in that part of the order. He claims that the National Court ought to have ordered a recount. 

7.	He applied for and was granted leave to make the application for review of the National Court decision, which is now subject to the objection to competency.

GROUNDS OF OBJECTION

8.	The second respondent raises seven grounds of objection. The primary ground concerns ss 104(2)(g) and 106 of the Constitution. The second respondent argues that this Court has no jurisdiction to hear the application as the Dei Open seat is by virtue of s 104(2)(g) vacant; and a by-election must be held due to s 106. 

9.	The applicant argues that the case relied on by the second respondent to support its proposition that this Court has no jurisdiction is a decision of the National Court, which we are not bound by, and that its facts are materially different to the facts of the present case. 

10.	The case in question is Simitab v Isifu (2023) N10480. The successful candidate died after a petition that challenged his election was filed and served on him. The National Court constituted by Kariko J held that:

•	the effect of the sitting member’s death was that his seat of Wewak Open became vacant under 104(2)(g) of the Constitution and a by-election was necessary under s 106 of the Constitution;

•	the right to dispute an election result by petition provided for in the Organic Law on National and Local Level Government Elections cannot override the Constitution, which is the supreme law;

•	the petition disputing the election of a member to the Parliament, abates upon the death of the member.

11.	The applicant argues that in Simitab the sitting member died before the trial of the petition but in the present case the sitting member died after the trial of the petition and before the judgment of the National Court was delivered.

12.	We acknowledge the difference in facts of the two cases. However, the difference is immaterial as the decision in Simitab turned on an interpretation and application of ss 104(2)(g) and 106 of the Constitution. The reasoning of Kariko J, who we point out is a member of this Court, was in our view clear and concise and correct. It was a straightforward application of the Constitution.

13.	Nothing is to be gained by allowing an election petition to proceed if the seat that the petitioner argues should be theirs is vacant and by operation of the Constitution can only be occupied by holding a by-election.

14.	The applicant argues that we are bound by s 158(2) of the Constitution in interpreting the Constitution to give paramount consideration to the dispensation of justice. The applicant argues that it will be unjust if we were to deprive the applicant of the opportunity to argue the merits of his case. He wants to argue that the trial judge, after finding a serious error in the conduct of the election by the returning officer unlawfully deciding not to count the contents of two ballot boxes, and finding that this error materially affected the result of the election, erred in not ordering a recount. 

15.	The applicant argues further that there is no express provision to cater for the special circumstances of this case where a petition had been fully heard and the National Court reserved for decision. Then the first respondent died. He urges us to view this as a special case, which was not contemplated by the drafters of the Constitution.

DETERMINATION

16.	We dismiss all those arguments. We acknowledge that the applicant genuinely feels that he has suffered an injustice. He genuinely believes that if the ballot papers in the two contentious ballot boxes are counted it is highly likely that he will be declared the successful candidate, and that such a result would accurately reflect the view of the electors of the Dei Open seat for the 2022 election.

17.	However, that is the applicant’s view of what justice entails in this case. It is not his view of justice that must prevail. True it is that we must give paramount consideration to the interests of justice. But it must be justice according to law. Here the governing law is the Constitution. 

18.	We cannot interpret ss 104(2)(g) and 106 of the Constitution any way other than that they clearly operate in this case. The Dei Open seat became vacant on the first respondent’s death on 22 September 2023. A by-election became necessary, as a matter of law. There are no exceptions to these constitutional requirements. 

19.	This means the Supreme Court has no jurisdiction. We uphold the second respondent’s ground of objection based on ss 104(2)(g) and 106 of the Constitution. For that reason alone these proceedings must be dismissed. It is unnecessary to consider the other grounds of objection.  

ORDER 

(1)	The objection to competency of the proceedings, made by the notice of objection to competency filed on 11 February 2025, is upheld.

(2)	The application for review of the decision of the National Court is dismissed.

(3)	The applicant shall pay the second respondent’s costs of the proceedings on a party-party basis, which shall if not agreed be taxed.

Lawyers for the applicant: Lomai & Lomai Attorneys
Lawyers for the second respondent:	Niugini Legal Practice