Kenai v Tom [2026] PGNC 47; N11728 (3 February 2026)

N11728

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
EP 19 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL
AND LOCAL LEVEL GOVERNMENT ELECTIONS

IN THE MATTER OF A DISPUTED RETURN
FOR THE WABAG OPEN ELECTORATE

BETWEEN
SAMUEL PHILIP KENAI
Petitioner

AND
DR LINO TOM
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

WABAG: ELLIS J
29, 30 JANUARY, 3 FEBRUARY 2026

ELECTION PETITION – No case to answer submission – objection to competency included – prior objection rejected – alleged absence of evidence – whether evidence should be assessed – discretion exercised – application refused

Cases cited

Amet v Yama [2010] PGSC 46; SC1064

Baira v Genia [1998] PGSC 47, SC579

Blair v Curran [1939] HCA 34; 62 CLR 464

Daiu v Gubag (2004) SC775

Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC579

Electoral Commission v Simon Solo (2015) SC1467

Ganim v Moses (2018) N7233

Ijape v Kimisopa (2002) N2344

Kikala v Electoral Commission (2013) SC1295

Kubak v Trawen [2012] PGNC 286; N4992

Lera v Tsiamalili (2023) N10177

Lindialu v Potape (2020) SC1981

Manase v Polye (2024) EP 22 of 2022 (unreported)

Neville Bourne v Manesseh Voeto [1977] PNGLR 298

Perry Zeipi v Gabia Gagarimabu (1999) SC 5 of 1998 (unreported)

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45

Powi v Kaku (2022) SC2290

Puk v Duma (2018) N2344

State v Paul Kundi Rape [1976] PNGLR 96

Tabar v Wong (2108) N7122

Talita v Ipatas (2016) SC160

Vagi Mae v Jack Genia (1992) N1105

Wai v Graham (2005) N2768

Waranaka v Dusava (2009) SC980

Waranaka v Maru (2018) N7436

Counsel

C Copland for the petitioner

A Nankana for the first respondent

L Dos for the second respondent

RULING ON A NO CASE TO ANSWER SUBMISSION

1. ELLIS J: Just before the court adjourned on 28 January 2026, as soon as the petitioner’s case was closed, the first respondent foreshadowed a no case submission. When the Court resumed the next morning, being 29 January 2026, the lawyer for the first respondent provided to the lawyer for the petitioner, and then handed up to the Court, 27 pages of detailed written submissions. As fairness required that the petitioner’s lawyer be given time to consider that document and prepare a response, the hearing was adjourned and the no case submission was heard on 30 January 2026. After adjourning to consider the written and oral submissions of the parties, the orders set out below were made and it was indicated that reasons for those orders would be provided later. These are those reasons.
   

Submissions for the first respondent

2. The written submissions for the first respondent (MFI 6) referred to:
   

Perry Zeipi v Gabia Gagarimabu (1999) SC 5 of 1998 (unreported)

Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC579

Daiu v Gubag (2004) SC775

Wai v Graham (2005) N2768

Tabar v Wong (2108) N7122

Lera v Tsiamalili (2023) N10177

Neville Bourne v Manesseh Voeto [1977] PNGLR 298

Waranka v Dusava (2009) SC980

Powi v Kaku (2022) SC2290

Vagi Mae v Jack Genia (1992) N1105

Ijape v Kimisopa (2002) N2344

Waranaka v Maru (2018) N7436

Puk v Duma (2018) N2344

Kikala v Electoral Commission (2013) SC1295

Lindialu v Potape (2020) SC1981

Ganim v Moses (2018) N7233

Electoral Commission v Simon Solo (2015) SC1467

Talita v Ipatas (2016) SC160

in support of propositions that may be summarised as follows:

(1) The Court has the discretion to stop a case where there is no evidence on a material aspect of the petitioner’s case.

(2) It is entirely with the discretion of the judge hearing the petition having regard to s 217 of the Organic Law on National and Local-level Government Elections (the Organic Law).

(3) The standard of proof in election petitions is “to the entire satisfaction of the court”, being higher than the civil standard of proof and closer to the criminal standard of proof.

(4) The onus of proof rests with the petitioner and never shifts.

(5) The petitioner has a duty to plead his case.

(6) At the trial, the question is whether what has been pleaded has been proved.

(7) Each ground may upset the election result and must be considered separately.

(8) An allegation that there were illegal practices and that there were errors and omissions that is based on the same facts should not be made.

3. Submissions were then made in relation to each of the petition’s 17 grounds raised in the petition. Those submissions included contentions that there was a lack of evidence in relation to some of those grounds.
   
4. Oral submissions emphasised that s 215 of the Organic Law, dealing with illegal practices, and s 218, dealing with errors and omissions, then proceeded to refer to each of the 17 grounds, adding little, if anything, to what was set out in the written submissions. It was contended that the petition should be dismissed and that the matters alleged would not affect the result, as the aggregate total of the votes affected was less than the winning margin of the first respondent, with the contended consequence that these proceedings lacked utility.
   

Submissions for the second respondent

5. The lawyer for the second respondent did no more than indicate support for the first respondent’s no case submission.
   

Submissions for the petitioner

6. Marked MFI 7, the written submissions for the petitioner submitted that a no case application is “entirely dependant on the discretion of the trial judge” and reference was made to the unreported decision in Manase v Polye (2024) EP 22 of 2022 (Manase) and Baira v Genia [1998] PGSC 47, SC 579 (Baira) in support of that submission. The passage quoted from Baria included the following words:
   

It is generally accepted that in a No Case to Answer submission, the trial judge is not required to analyse the evidence because that requires the weighing up of evidence and considering the credibility of witnesses which is best left to the end of the trial, when all the evidence, called by the Petitioner and the Respondent, has been received.

A No Case to Answer submission should be made when there is no evidence whatsoever on the face of the case to warrant the trial to proceed. However, if there is some evidence present in the Petitioners’ case that [is] capable of lawfully invalidating the election, [the] trial must proceed.

7. In support of those words, the decision in State v Paul Kundi Rape [1976] PNGLR 96 (Paul Kundi Rape) was cited.
   
8. Reference was made to the first respondent’s prior objection to competency (document 10, filed on 30 September 2022), its content and outcome, and it was contended that any such objection could be considered at the end of the trial. It was also contended that the allegations of errors and omissions (which covered grounds 3 to 17) were allegations against the second respondent. The written submissions of the petitioner then identified the evidence in support of each of the grounds numbered from 1 to 17.
   
9. Additional matters raised in oral submissions were:
   

(1) that, in the Election Petition Rules (the Rules), Rule 12 deals with Objections to Competency,

(2) a reference to the affidavit of Jessy Karato,

(3) that the tally for Maramuni was 11,178 votes of which 6 were informal, 4 were for other candidates and the rest were for the first respondent, and

(4) that the first respondent obtained 35,782 votes and that, as an absolute majority was 33,785, the relevant difference was only 1,997 votes.

Submissions in reply

10. Reference was made to the decisions in Amet v Yama [2010] PGSC 46 (Amet); SC1064 and Kubak v Trawen [2012] PGNC 286; N4992 (Kubak) in support of the proposition that the Court may consider an objection to competency at any stage of the proceedings. It was also contended that, based on the petitioner’s evidence, the petitioner would not be able to prove the allegations.
    

Relevant law

11. In the Organic Law, s 217, headed “Real justice to be observed”, specifies:
    

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.

12. As to illegal practices, s 215, which is headed “Voiding election for illegal practices”, provides:
    
    • (1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
      

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void –

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

13. Headed “Immaterial errors not to vitiate election”, s 218 says:
    
    • (1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
      

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.

14. In the Rules, Rule 12 is in the following terms:
    

A respondent who objects to the competency of the petition shall, within 21 days of service of the petition –

(a) file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and
(b) serve a copy of the objection on the petitioner and on each of the other respondents; and
(c) file and serve affidavits in support of the objection.

15. The relevant case law is either referred to above, when summarising the submissions, or below, when setting out the reasons for the Court’s decision.
    

Consideration

16. This application included an objection to competency under the banner of a no case submission. As a result, both those issues need to be considered.
    
17. The objection to competency is rejected for the following reasons. First, a Notice of Objection to Competency was filed by the first respondent well over three years ago, on 30 September 2022. That document, which is numbered 10 on the Court file for these proceedings, reveals in what was termed Ground One, a claim of overlapping allegations of “both illegal practices and errors or omissions”, one of the matters raised again as part of this no case submissions. The first respondent’s lawyer did not reply to that aspect of the petitioner’s submissions.
    
18. Courts take the view that the same issue cannot be raised more than once otherwise litigation would never be finalised. In everyday language, that principle could be summarised by saying “you cannot have two bites of a cherry”. The term issue estoppel is used to prevent a party from contradicting what was previously decided. The classic formulation of that principle is contained in the judgment of Dixon J (as he then was) in Blair v Curran [1939] HCA 34; 62 CLR 464 at 531:
    

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

19. Further, Anshun estoppel, so named because it is based on the decision in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, operates to provide a barrier to raising a matter that could and should have been raised earlier.
    
20. Hence, the Court is not persuaded it should exercise its discretion in relation to allegations that either were raised in the earlier objection to competency or which could and should have been raised in that objection to competency, that was rejected on 19 October 2023.
    
21. Secondly, while the Supreme Court, in Amet, said that an objection to competency can be raised at any stage of election proceedings, that decision did not say the Court must consider such an application. That as to be the position since a decision whether to entertain an objection to competency is discretionary as is a decision a no case submission. Nor does the National Court judgement in Kubak assist the first respondent as that decision, which is not binding on this Court, was a decision on the facts of that case. In Kubak, the issues were the failure to lodge an objection to competency within time, prior to any hearing, and a failure to properly plead an allegation of illegal practices. In this case, the first respondent is (1) taking an objection after the petitioner’s case has been closed, (2) taking that objection more than 3 years after these proceedings were commenced, and (3) raising matters that have previously been determined by this Court.
    
22. Thirdly, the unusual position of these proceedings is relevant to the exercise of the Court’s discretion. This petition is close to 3½ years old and the term for which the first respondent was elected is 5 years. It is likely that any decision of this Court will be the subject of an appeal. To entertain and grant this objection would create the prospect of multiple appeals if an appeal from that such a decision was overturned, the hearing is resumed or has to be entirely re-heard, and then an appeal was lodged in relation to that final determination. That situation can be avoided if this Court exercises its discretion against the objection to competency, in which case (1) the points now raised under that heading can be raised at the end of the hearing, and (2) there could only be one appeal from these proceedings. To say that the prospect of this petition, and any resulting appeal, not being finalised until after the first respondent’s five-year term ends is undesirable is an understatement.
    
23. In relation to the no case submission, what was said in Baira (as quoted above) is binding upon this Court and the reference to Paul Kundi Rape was to a decision that has now been followed and applied for 50 years. Further, as to each of the grounds, numbered 1 to 17, the written submissions for the petitioner listed evidence (referring to affidavits rather than their contents) said to support each of those grounds and those submissions were not contested in submissions in reply.
    
24. Hence there are three reasons why the Court’s discretion in relation to the no case submission must be exercised in favour of rejecting that submission.
    
25. First this Court cannot be satisfied that there is merit to the claim that the petitioner has led no evidence on various issues when the petitioner has listed the affidavits said to support his case on those issues and that listing was not challenged.
    
26. Secondly, it is not appropriate for the Court to engage on any assessment of the petitioner’s evidence, following what was said in Amet and Kubak.
    
27. Thirdly, there is no prejudice to the first respondent in such an outcome since, if the first respondent is correct, that will be the outcome at the conclusion of the hearing, having regard to both the evidence and submissions. It is not appropriate to make any assessment of the evidence prior to the conclusion of the hearing, and the Court has not done so in this instance. Plainly, if there is an absence of evidence from the petitioner in relation to any of the 17 grounds, it is open to the first respondent to lead no evidence in relation to any such ground.
    
28. It is noted that the decision in this case is consistent with that in Manase, which was a not dissimilar case, also relating to the 2017 national election, where there had been written evidence from 49 witnesses and oral evidence from 40 witnesses.
    

Costs

29. As the Court did not favour taking further time to deal with the question of the costs of the no case submission, which included an objection to competency, an order was made for the costs of this Notice of Motion to be reserved, so that they may be considered at a late date, presumably at the conclusion of the proceedings.
    

Orders

30. It was for the reasons set out above that the following orders were made on 30 January 2026:
    1. The first respondent’s no case submission is rejected.
    2. The costs of that application are reserved.
    3. Time is abridged so that these orders may be entered forthwith.
       

Orders Accordingly.
__________________________________________________________________
Lawyers for the petitioner: Ashurst PNG
Lawyers for the first respondent: A Ninkama Lawyers
Lawyers for the second respondent: L Dos