Kuman v Dekena [2026] PGSC 15; SC2857 (27 February 2026)

SC2857

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCAPP 79 OF 2025 (IECMS)

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

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

Between:
NICK KOPIA KUMAN

Applicant

And:
DAWA LUCAS DEKENA

First Respondent

And:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

WAIGANI: SALIKA CJ, AUKA J, CAREY J

24, 27 FEBRUARY 2026

SUPREME COURT RULES – Order 11 Rules 25 and 26

PRACTICE AND PROCEDURE - application to dismiss appeal for want of prosecution – whether the First Respondent had a satisfactory explanation for any delay

The First Respondent sought a rehearing de novo of its Notice of Motion filed on 16^th October 2025. Using Order 11 Rules 25 and 26 of the Supreme Court Rules the First Respondent proceeded with this application. The Applicant suggests that the application by the First Respondent is defective and an abuse of process.

Held:

1. A lawyer’s non-attendance and mere assertion of mistake does not constitute a satisfactory explanation for default.
2. The Order 11 application is competently invoked but fails on the merits as there is no satisfactory explanation for default, no lawyer’s affidavit, and no arguable prejudice justifying reinstatement on a rehearing de novo.
3. The application by the First Respondent is dismissed in its entirety as it has no merit.
4. The costs of the Applicant and the Second Respondent of and incidental to the proceedings be paid by the First Respondent on a party-party basis, to be taxed if not otherwise agreed.
   

Cases cited
Leo Duque v Avia Andrew Paru [1997] PNGLR 378
NEC v Toropo [2022] SC2193
Nema v Kaiwi [2025] SC2773
Tongamp v Kaiwi [2025] SC2774
Wakerkwa v Zongonau & Ors [2024] SC2649

Counsel
Mr. T. Sirae McGregor, for the applicant
Mr. N. Tame, for the first respondent

Ms. S. Kapi, for the second respondent

JUDGMENT

1. BY THE COURT: This is the decision on Dawa Lucas Dekena’s (the First Respondent) application filed 16^th October 2025 seeking leave to have his application of 27^th August 2025 reheard by the Supreme Court.
   

BACKGROUND

2. Nick Kopia Kuman (the Applicant) and the First Respondent were candidates in the 2022 National General Elections who contested for the Gumine Open seat in Simbu Province.
   
3. The Electoral Commission (the Second Respondent) appeared as a neutral party.
   
4. On 7^th August 2022 the First Respondent was declared the winner with 19, 170 votes while the Applicant polled 15, 907 votes.
   
5. On 15^th September 2022 the Applicant filed a petition, proceeding styled EP 80 of 2022 Nick Kopia Kuman v Lucas Dawa Dekena and the Electoral Commission, in the National Court and trial was conducted between 4 November and 19 December 2024.
   
6. On 12^th August 2025 the Court handed down its ruling dismissing the petition with costs against the Applicant.
   
7. The Applicant, being aggrieved by the decision, filed this proceeding on 24^th August 2025.
   
8. By a motion filed 24^th August 2025 the Applicant sought leave to review the decision of 12^th August 2025.
   
9. The First Respondent filed a motion on 27^th August 2025 seeking dismissal of the Applicant’s motion seeking leave to review.
   
10. On 15^th October 2025 the First Respondent’s motion filed 27^th August 2025 was dismissed by the motions judge for want of prosecution after the Respondents’ lawyers did not turn up in Court for hearing of the First Respondent’s application filed 27^th August 2025.
    
11. The First Respondent filed this application on 16^th October 2025 seeking rehearing of his application filed 27^th August 2025.
    

ISSUE(S)

1. Whether the Notice of Motion filed by the First Respondent on 16^th October 2025 is defective?
2. Whether the interests of justice suggest that this application can proceed?

100. Whether, notwithstanding any defect, the interests of justice require that the application be heard;

4. Whether the application constitutes an abuse of process;
5. Whether the affidavit evidence is sufficient to support the application;
6. Whether any party would suffer prejudice if the application were granted or refused;
7. The appropriate order as to costs.
   

DETERMINATION

12. The First Respondent avers that Order 11 Rule 25 and 26 of the Supreme Court Rules 2012 consolidated to the Supreme Court (Miscellaneous Amendments) Rules 2022 provides that its application filed on 27^th August 2025 and dismissed for want of prosecution by a Single Judge Bench of the Supreme Court on 15^th October 2025 can be re-heard by this three-person Supreme Court Bench.
    
13. The single judge order was made on 15^th October 2025 and the present notice of motion was filed on 16^th October 2025 which is within 21 days.
    
14. The notice of motion on 16^th October 2025 also seeks the same orders as were sought before the single judge, satisfying Order 11 Rule 26.
    
15. The First Respondent admits that he has no reasonable explanation save a mistake by his lawyer to attend to court to advance his application.
    
16. The Applicant contends that this application before the Court is defective and an abuse of process.
    
17. Further, the Applicant indicates that this application lacks merit, is frivolous and is vexatious.
    
18. In Leo Duque v Avia Andrew Paru [1997] PNGLR 378, it states that a lawyer’s negligent conduct in allowing his client to suffer default judgment is not a valid reason for setting aside default judgment.
    
19. The argument advanced by the First Respondent as to any reasonable explanation is lacking in substance and provides no support to sustain a position that should warrant this court making any consideration in its favour.
    
20. Wakerkwa v Zongonau & Ors [2024] SC2649 held that:
    

“There was a plain failure to continue to prosecute the matter and no reasonable explanation provided by the appellants.”

21. In this instance the First Respondent did not prosecute the matter.
    
22. The Affidavit in Support of the motion before this court was by the First Respondent and not the lawyer who would have been aware as to why he allowed the judgement to be entered against the First Respondent which dismissed his application for want of prosecution.
    
23. The First Respondent admits that the only explanation is a mistake by his lawyer in failing to attend court, which is not a valid ground for setting aside a dismissal for want of prosecution.
    
24. Accordingly, the application is not defective, however it fails on the merits because we are not persuaded that there was any reasonable explanation for the dismissal for want of prosecution allowed by the First Respondent’s lawyer.
    
25. Further, given our finding that the Order 11 pathway has been properly engaged, no further ad hoc directions are required.
    
26. Section 185 of the Constitution is facilitative and does not override specific procedural rules or established principles governing dismissal for want of prosecution.
    
27. The matter of negligence is appropriate given the conduct of the lawyer for the First Respondent who did not prosecute the matter.
    
28. We considered whether despite the failure of the First Respondent to provide a reasonable explanation for not prosecuting the matter on 15^th October 2025, if the interests of justice required the application to be heard.
    
29. The First Respondent has not demonstrated any exceptional circumstances or injustice that would arise if the application were not heard. The only explanation offered is the negligence of counsel, which, as established in Leo Duque v Avia Andrew Paru [1997] PNGLR 378, is not a sufficient basis for setting aside a dismissal for want of prosecution.
    
30. We are not satisfied that the interests of justice require the matter to proceed.
    
31. We have also considered whether this application is an abuse of process because it seeks to relitigate a matter that was dismissed for want of prosecution without providing any new or compelling reason for the Court to revisit its earlier decision.
    
32. The First Respondent’s failure to prosecute his own application, coupled with the absence of a reasonable explanation, renders this application frivolous and vexatious.
    
33. We note that the affidavit in support is by the First Respondent, who was not in a position to explain the lawyer’s failure to appear.
    
34. The absence of an affidavit from the lawyer who was responsible for the non-appearance is fatal to the application.
    
35. We are therefore left without any credible or detailed explanation for the default.
    
36. We have also considered whether granting the application would cause prejudice to the Applicant and the Second Respondent, who are entitled to finality in litigation and should not be subjected to repeated or unmeritorious applications.
    
37. Refusing the application does not cause any injustice to the First Respondent, who has failed to advance any substantive reason for the Court to exercise its discretion in his favour.
    

FURTHER CONSIDERATIONS

38. It is expected that when Counsel appear before the final appellate court that the standard of advocacy is aligned with the level of the expectation of the Court.
    
39. There can be no tolerance for lowering the standard of advocacy in advancing frivolous or vexation claims which has no basis in law and which provide no assistance for the Court to consider in its determination.
    
40. Section 185 of the Constitution generally provides the Supreme Court with broad powers to make orders as are necessary for the administration of justice, including procedural flexibility in the interests of justice.
    
41. We have considered that this is not absolute and does not override specific procedural rules or established principles regarding the setting aside of dismissals for want of prosecution.
    
42. The First Respondent relies on section 185 to argue that the Court should exercise its inherent powers to rehear the application which was dismissed for want of prosecution.
    
43. However, we have found that the First Respondent failed to provide a reasonable explanation for the default, with the only reason advanced being the negligence or mistake of counsel in failing to attend court.
    
44. Therefore, while section 185 gives the Court wide powers, it does not assist the First Respondent in the absence of a credible or sufficient explanation for the default, nor does it allow the Court to disregard established principles and procedural requirements.
    
45. The interests of justice, as interpreted by the Court, do not support granting relief where the only explanation is counsel’s negligence and there is no evidence of exceptional circumstances or injustice.
    
46. We further considered the relevance of NEC v Toropo [2022] SC2193 to the First Respondent’s claim to the extent that it discusses the Supreme Court’s inherent powers and the circumstances in which the Court may set aside its own orders or rehear matters in the interests of justice.
    
47. In that case, the Court recognized that, in exceptional circumstances, it may exercise its inherent jurisdiction to prevent injustice, even where procedural rules would otherwise preclude relief.
    
48. We have found as a finding of fact that the First Respondent did not demonstrate exceptional circumstances or injustice that would support the exercise of discretion in their favour.
    
49. The threshold for the intervention of this court was not met.
    

CONCLUSION

50. Even if the Court were to consider the underlying motion, the competing submissions focus on whether proof of the K5,000 security deposit was provided to the Registry at the time of filing of the leave application per Order 5 Rule 13, and on the effect of IECMS uploads.
    
51. The First Respondent relies on Nema v Kaiwi [2025] SC2773 and Tongamp v Kaiwi [2025] SC2774, and questions whether IECMS uploads constitute filing, and indicates that physical proof reached the Registry after filing.
    
52. The Applicant maintains that receipts were uploaded to IECMS at the time of filing and that payment need not occur on the same day, provided proof is given at filing.
    
53. Given the submission of the First Respondent, the prospects are at best uncertain and do not overcome the absence of a satisfactory explanation for the earlier default.
    
54. The Court orders that the costs of the Applicant and the Second Respondent of and incidental to these proceedings, be paid by the First Respondent on a party-party basis, to be taxed if not otherwise agreed.
    
55. This is appropriate given the lack of merit in the application and the unnecessary costs incurred by the other parties in responding to it.
    

ORDERS

1. The application by the First Respondent is dismissed in its entirety as it has no merit.
2. The costs of the Applicant and the Second Respondent of and incidental to the proceedings be paid by the First Respondent on a party-party basis, to be taxed if not otherwise agreed.

Ordered Accordingly

Lawyers for the applicant: McGregor & Associates Lawyers
Lawyers for the first respondent: Nicholas Tame Lawyers
Lawyers for the second respondent: Niugini Legal Practice