Lyakundi v Iamau [2025] PGNC 464; N11616 (28 November 2025)

N11616

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 313 OF 2025

KEN LYAKUNDI
Plaintiff

v

ANTON IAMAU
First Defendant

RICKY UPA
Second Defendant

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Defendant

WABAG: ELLIS J
28 NOVEMBER 2025

LOCAL-LEVEL GOVERNMENT ELECTIONS – Plaintiff seeking interim injunction to restrain completion of an election – balance of convenience considered - application refused

APPLICATION FOR JUDICIAL REVIEW – Statutory remedy available but not used – application refused – available remedies not exhausted

Cases cited
American Cyanamid v Ethicon [1975] UKHL 1; [1975] 1 All ER 504
Employers Federation v PNG Waterside Workers (1982) N393
Robinson v National Airlines Corporation [1983] PNGLR 476

Counsel
C. Talipan for the plaintiff
No appearance for the defendants

JUDGMENT

1. ELLIS J: On 18 November 2025 the Plaintiff filed an originating summons which sought the following orders:
   
   1. A declaration that the nomination and election of Mr Ricky Upa as councilor (sic) for Mamale Ward One (1) was unlawful and invalid under Section 102, Section 103(1)(a), and Section 25(1))(a) of the Organic Law on National and Local Level Government Elections.
   2. An Order that the Electoral Commission and Enga Provincial Election Manager be restrained from returning the Writ for Mamale Ward 1 in favour of Mr Ricky Upa.
   3. An Order that the Enga Provincial Administration be restrained from swearing in Mr Ricky Upa as a councillor for Mamale Ward 1.
   4. A Declaration that the Applicant, Mr Kenneth Lyakundi, is entitled to be declared duly elected subject of legal confirmation.
   5. Leave for judicial review under Section 208 of the Organic Law.
   6. Costs of this Proceeding.
   7. Such other or further orders as the Honourable court just (sic).
2. Together with that Originating Summons was filed a Notice of Motion which sought the following orders:
   
   1. That an interim injunction be granted restraining the First Defendant, Mr Anton Iamau, from returning the Writ for Mamale Ward 1, Lagaip LLG, Enga Province, in favour of the Second Defendant, Mr Ricky Upa, pending the dtermination of this proceeding.
   2. That an order be granted restraining the Enga Provincial Administration and any authorised officer from swearing in Mr Ricky Upa as a councillor for Malae Ward 1.
   3. That the nomination and election of Mr Ricky Upa be declared unlawful and invalid under section 102 and section 251(1)(a) of the Organic Law on National and Local Level government Elections.
   4. That the Court granted leave for Judicial Review under section 208 of the Organic Law.
   5. That the costs of this application be awarded to the Applicant (sic).

6. Any other or further orders the court deems just and necessary.

3. An affidavit in support, sworn by the Plaintiff was also filed on 18 November 2025, and undertaking as to damages was filed on 19 November 2025. A letter dated 20 November 2025 sought a hearing date on the basis that this case was urgent.
   
4. However, the Court was sitting in Baisu on 21 November 2025, and these proceedings were not brought to the attention of the Resident Judge until 27 November 2025, when 1.30pm today was allocated to consider this matter.
   

Evidence

5. The Plaintiff’s affidavit said he is a registered voter and was the runner-up in the 2025 Lagaip Local-level Government Elections. It was alleged that the First Defendant was declared to be the winning candidate for Mamale Ward 1 despite being neither enrolled in that ward nor residing in that ward.
   

Submissions

6. It was submitted that the elected councillor was not of the correct ward and reference was made to pages from the Electoral Commission’s Common Roll in support of that submission. It was contended that the election of that councillor, who is the second defendant, should be declared null and void. There was no submission to indicate what is the current position in relation to the election which is the subject of these proceedings.
   

Relevant law

7. It is well-established that a request for an interim injunction will only be granted if two tests are satisfied: (1) that the plaintiff has a prima facie case, and (2) that the balance of convenience favours granting the request for an injunction: Robinson v National Airlines Corporation [1983] PNGLR 476 at 480 and Employers Federation v PNG Waterside Workers (1982) N393, which adopted what was said in American Cyanamid v Ethicon [1975] UKHL 1; [1975] 1 All ER 504.
   
8. In the Organic Law on National and Local-level Government Elections (the Organic Law), s 287(3) provides as follows:
   

A petition to dispute an election or return shall be filed at the District Court in the town in which are situated the headquarters of the Provincial Government of the Province which includes the area of the Local-level Government in respect of which the election was held.

9. It is also clear that an applicant for leave to have a decision judicially reviewed must establish four things:
   

(1) the plaintiff must have a sufficient interest,

(2) the plaintiff must have an arguable case,

(3) there should be no undue delay. And

(4) all other statutory avenues for appeal or review must have been exhausted.

Consideration

10. Even assuming the Plaintiff has a prima facie case, the balance of convenience does not favour making any interim order because (1) the election process appears to have been finalised, (2) there is a facility available to the Plaintiff to challenge the outcome of the election, namely to file an election petition in the District Court, and (3) it is not appropriate for this Court to provide an alternative remedy.
    
11. The suggestion that this Court should declare the election of the second defendant null and void is rejected as such an order should not be made without providing an opportunity for the defendants to be heard and there is nothing to suggest they have been served.
    
12. Given the remedy available to the Plaintiff under s 287(3) under the Organic Law, his request for leave for judicial review should be refused as he has not exhausted the statutory remedies available to him.
    
13. As a result, these proceedings will be finalised, noting that the Plaintiff is free to pursue, in the District Court, the remedy provided by that statutory provision.
    

Costs

14. As the Plaintiff has not been successful, he is not entitled to any order for costs in his favour. Since there was no appearance by or for any of the Defendants, they are not entitled to any order for costs in their favour. In those circumstances, the appropriate order is that each party bear their own costs of these proceedings.
    

Orders

15. For the reasons set out above, the orders of the Court will be as follows:
    
    1. The Notice of Motion and Originating Summons are dismissed.
    2. Each party is to bear their own costs of these proceedings.

3. Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.
__________________________________________________________________
Lawyers for the plaintiff: Kortal Lawyers