N1294

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS 5 OF 1995

BETWEEN:

ANDREW ARIAKO,
Member for Mikarep Constituency
In the Madang Provincial Government
Plaintiff

AND:

MAHUYU SINGOA, 
Member for Naho Rawa Constituency
In the Madang Provincial Government
First Defendant

JERRY MANYIR, Acting Assembly Clerk
Second Defendant

AND:

MADANG PROVINCIAL GOVERNMENT
Third Defendant

Waigani : Sawong AJ
13 January 1995

National Court Rules - Practise & Procedures - vexatious or frivolous claims - Declaration –
- Practise & procedures of Legislation Assembly - Constitutional Law - Separation of powers - whether Court should usurp Legislative Function - Constitutions. 99 (3).

Cases cited
Peter -v- South Pacifc Brewery Ltd [1976] PNGLR 537
S.C.R. No. 2 of 1981; Re S.19 of the Constitution [1981] PNGLR 1981 518
S.C.R. 1(a) of 1981; Re Motor Traffic Act [1982] PNGLR 122.

RULING

P Paraka, for the Plaintiff.
W Duma, for the Defendant.

13th January,1995 

SAWONG AJ: On the 11th and 12th January, 1995, I granted ex parte interim injunctions restraining the Second and First Defendants respectively, restraining them from convening the Madang Provincial Assembly pending the determination of the substantive issues contained in the Originating Summons. I made the Interlocutory Orders returnable to this Court this morning. This was to enable both parties an opportunity to be heard, if any, on whether I should continue the Interlocutory Orders or not.

The Plaintiff has now filed and served an amended Originating Summons. In the amended Originating Summons the Plaintiff seek the following:-

1. 	A declaration that the election of the Mahuyu Singoa as Speaker of the Madang Provincial Assembly on Friday 30th December, 1994 is valid.

2. 	A Declaration that the purported resignation of Mahuyu Singoa as Speaker of the Madang Provincial Assembly on 30th December, 1994 is invalid and null and void and of no effect.

3. 	A Declaration that Mahuyu Singoa is still the lawfully elected Speaker of the Madang Provincial Assembly.

4. 	Declaration that the letter resignation tendered by the Speaker Mr Mahuyu Singoa to the Acting Clerk of the Madang Provincial Assembly does not become effective until the Provincial Assembly being his electing and or appointing authority decides by two thirds absolute majority vote to accept his resignation.

5. 	A Declaration that the Acting Clerk of the Madang Provincial Assembly does not have the power and or mandate to accept a resignation by the Speaker of the Madang Provincial Assembly.

6. 	A Declaration that the Speaker of the Madang Provincial Assembly and or the Clerk of the Madang Provincial Assembly do not have the power to adjourn the first sittings of the Provincial Assembly after a general election unless the Provincial Assembly, by a majority vote decides to do so.

7. 	A Declaration that the Speaker of the Provincial Assembly does not have a right to vote in the Assembly except a casting vote in the event of equality of votes.

8. 	A Declaration that the group of twelve members led by the Plaintiff were deemed to have formed the Madang Provincial Government on Friday 30th of December, 1994, in that the Plaintiff's group had twelve solid members while the other group had only eleven members after the election of the Speaker.

9. 	A Declaration that the Plaintiff's group's nominees for the following offices are deemed to have been elected to the office on the 30th December, 1994 as the Plaintiff's group had the majority of twelve members and the other group had eleven members after the election of the Speaker.

1. 	Premier - Andrew Ariako;

2. 	Deputy Premier - Tabu Silau;

3.	Deputy Speaker - Flavin Kasinai.

10. 	Alternatively, a direction that when the Madang Provincial Assembly next meets, the following be the Order of Business.

1. 	Election of Premier under Section 32 of the Madang Provincial Constitution.

2. 	Election of Deputy Premier under Section 33 of the Madang Provincial Constitution.

3. 	Election of Deputy Speaker of the Madang Provincial Assembly under Section 13 of the Madang Provincial Constitution.

11. 	Alternatively, an Order that the Speaker of the Assembly convene an assembly meeting forthwith for the election of the Premier, Deputy Premier and Deputy Speaker of the Madang Provincial Assembly.

12. 	Costs of this action be paid by the Defendants.

13. 	Seek further and other orders as the Court deems fit.

I have set out in full the relief claimed by the plaintiff to show clearly the issues involved in these proceedings.

Mr Duma appeared for the Defendants today. Mr Duma applied for and sought leave to file in Court an Affidavit sworn by the First Defendant. I granted him leave and ordered that the Affidavit be filed therein and it became part of the evidence for the defendants. 

Mr Paraka has submitted that I should continue the Interlocutory Injunctive Relief that I had granted to the Plaintiff on the 11 and 12 January, 1995 respectively. He submitted that there were serious issues that need to be tried including the new paragraphs for declarations which are contained in paragraphs 8 and 9 I have cited above.

In essence, Mr Paraka's submissions were that the declarations that Plaintiff had sought were substantive issues of law that can only be finally determined at a proper hearing of the substantive proceedings. Accordingly he submitted that the interim injunctions should continue.

Mr Paraka submitted that even though the Defendants have conceded to all declaration and orders sought by the Plaintiff i.e. the amended originating summons, with the exception of paragraphs 8,9, & 12, nevertheless, the Court should extend the interim injunction until the substantive issues are determined.

Mr Duma, on the other hand submitted that the Defendants have conceded to all the declarations and the relief sought by the Plaintiff with exceptions of paragraphs 8 and 9 contained in the amended Originating Summons and the question of cost. Accordingly he submitted that the interim injunctions should not be extended. He submitted that paragraphs 8 and 9 ought to be struck out as what the Plaintiff was asking the Court to do was to usurp the role of Legislature, namely the Madang Provincial Assembly. He submitted that the evidence was as contained in the affidavits of the Plaintiff and the Defendant was that no nominations had been made for any person to be elected Premier, Deputy Premier and Deputy Speaker, respectively. There was no evidence that nominations had in fact been called for and any member of the Assembly had in fact been nominated for any of the positions of Premier, Deputy Premier and Deputy Speaker respectively. That being the case, he submitted that the Court had no jurisdiction to determine or make the declarations sought in paragraphs 8 and 9 of the Amended Originating Summons. In the alternative, Mr Duma submitted that there was in any case no evidence that any of persons were nominated for the position set out in paragraph 9.

In essence, his submission was, firstly, that there was no evidence that any of these persons were duly and properly nominated in accordance with the rules and procedures of the Assembly for the respective offices. Secondly, and more importantly, the power to nominate and elect the offices set out in paragraph 8 and 9 of the Originating Summons rested solely with the Provincial Assembly, and not with the Court.

He therefore, submitted that the paragraphs 8 & 9 of the Amended Originating Summons should be struck out as not within the jurisdiction of this Court.

In so far as the other paragraphs, namely paragraphs 1-7 inclusive and 10 and 11 of the Amended Originating Summons, he conceded the relief claimed in those paragraphs.

In so far as the other relief as contained in the Originating Summons, Mr Duma submitted that the defendants conceded to the declarations and the relief sought in those paragraphs contained in the Originating Summons. He submitted that as the circumstances have now changed, there was really no substantive issues of law that needed to be determined and accordingly, he submitted that the Interim Injunctions that I had granted to the Plaintiff ought to be discharged.

The evidence for the Plaintiff is contained in Affidavits of Paul Paraka deposed on 10th & 12th Janaury, 1995 and Andrew Ariako deposed on 5th January, 1995.

I deal firstly with the evidence of the Plaintiff, Andrew Ariako. I set out in the contents of his Affidavit hereunder; 

1. 	I am the Provincial Member for MIKAREP Constituency of BOGIA District in the Madang Province.

2. 	The Madang Provincial Assembly first met on or about 10.00 am on Friday 30th December, 1994 after the Provincial General Election in December, 1994.

3. 	The Provincial Legislature had 24 members, and at the time, there were two groups, one led by myself with 11 other members ( a total of 12 members altogether) and we were seated on the left hand side of the Assembly Chambers.

4. 	The other group was led by Mr. Matthew Gubag, with 11 other members (a total of 12 members altogether) and they were seated on the right hand side of the Assembly Chambers.

5. 	The Acting Clerk of the Provincial Assembly, Mr. Jerry MANYIR took the Chair on or about 10.00 am on the 30th December, 1994.

6. 	All the member of the Assembly including myself were sworn into office individually including the return of the Writ for each Constituency. The Provincial Senior Magistrate Mr. Jacob SARENG, swore each and every individual member's into office.

7.	After the swearing in of the members, the Acting Clerk of the Assembly then called for the nomination of the Speaker.

8.	Mr. Yamore MAGIN, member for WANGIL Constituency, who was from the other group, stood up and nominated Mr. Muhuyu SINGOA, a member for NAHO RAWA constituency as the speaker of the Assembly. This nomination was seconded by Mr. Mikauri ASSE of BUNDI Constituency. 

9. 	When asked by the Acting clerk of the Assembly, Mr. MAHUYU SINGOA accepted the Chair as the Speaker.

10. 	I then stood up and moved that the nomination be closed. Mr. Bernard MOLLOCK, Member for ALMAMI Constituency, seconded the motion. 

11. 	Since Mr. MAHUYU SINGOA was the only candidate for the Speaker's Chair, the Acting Clerk of the Assembly then declared him duly elected as the Speaker of the Madang Provincial Assembly.

12. 	The Acting Clerk then adjourned the Assembly for 5 minutes for Mr. MAHUYU SINGOA to be sworn into the office of the Speaker by the Senior Provincial Magistrate.

13.	Annexed hereto and marked with the letter "A" is a true copy of the Declaration of office by MAHUYU SINGOA.

14. 	Some 5 minutes later, the Assembly resumed and Mr. MAHUYU SINGOA took the Chair as the Speaker of the Madang Provincial Assembly. He then proceeded to thank the members for electing him as the Speaker of the Assembly and confirmed having being sworn into office by the Senior Provincial Magistrate.

15. 	The Speaker then proceeded to state that he would adjourn the Assembly to 2.30 pm of the same day to seek further legal clarification on technical problems in the further conduct of the meeting of the Assembly.

16. 	I then raised a point of order and asked what the technical problem was.

17. 	The Speaker then replied and stated that the technical problem was whether the speaker would be entitled to vote for the Premier and Deputy Premier and Deputy Speaker of the Assembly.

18. 	I then raised another point of order by stating that the Speaker cannot vote, and the Speaker should therefore proceed to take nomination for the office of the Premier.

19. 	Along with point, I also raised with the Speaker that he cannot simply adjourn the Assembly unilaterally. If the Assembly was to be adjourned, then the Assembly had to decide on that question, by a majority vote.

20. 	Despite my Points of Orders and objections, the Speaker went ahead and unilaterally adjourned the Assembly to 2.30 pm of that day, 30th December, 1994.

21. 	I led my group of 12 members including myself to the Provincial Assembly on or about 1.30 pm.

22. 	I can recall that on or about 2.15 pm, the other group led by Mr. Matthew Gubag and his 12 other men (including himself) arrived at the chambers of the Provincial Assembly.

23. 	I can vividly recall that the speaker arrived with the other group and sat with the group instead of taking up the Speakers Chair.

24. 	When it was about 2.30 pm, the Speaker did not take up his seat in the Speaker's Chair.

25.	At about 2.40 pm, the Acting Clerk of the Assembly entered the Assembly and announced that the Speaker had tendered his resignation and that he had accepted his resignation. He then proceeded to say that he would adjourn the Assembly to 16th January, 1995.

26. 	Annexed hereto and marked with the letter "B" is a true copy of the letter of resignation.

27. 	I then stood up and raised a Point of order that the Speaker could not resign unilaterally by giving a letter to that effect to the Acting Clerk of the Assembly. If the Speaker was to resign, then he had to resign to the Assembly, who had voted him into office. I maintained that the resignation must be put to the Assembly's vote, and the resignation would be effective if the two thirds absolute majority of the Assembly so decided. I also made it very clear in my point of order that the Acting Clerk of the Assembly simply did not have the power and or mandate to accept the purported resignation of the Speaker.

28. 	I am aware that other members in my group also strongly raised similar points of orders but the Acting Clerk went ahead and stated that he had already accepted the resignation of the Speaker and he adjourned the Assembly to the 16th January, 1995.

29. 	I am aware that the proceedings of the Assembly on Friday 30th December, 1994 was recorded by tape and what is contained in this my affidavit is an accurate recollection of the events of that day.

30. Annexed hereto and marked with the letter "C" is a true copy of the Madang Constitution.

31. Annexed hereto and marked with the letter "D" is a true copy of the Standing order of the Madang Provincial Assembly.

The Affidavit of Mr. Paraka of 10th January, 1995 is also relevant. The relevant paragraph is paragraph 3 and the annexure "B" is referred to therein. Annexure "B" is the Minutes of the proceedings of the Assembly of 30th December, 1994. 

The evidence of the Plaintiff is quite clear and consistent in the evidence as contained in the Minutes of the proceedings of the Assembly.

The evidence of the Defendant, contained in the Affidavit of the First Defendant, is also consistent with the evidence of the Plaintiff and the Minutes of the Assembly Meeting.

I have carefully read the Affidavits and have carefully considered the submissions advanced by both parties.

I propose to deal with paragraph 8 & 9 first. The reasons for this, will be obvious from my reasons later on in this judgement. Paragraphs 8 and 9 and 12 of the Originating Summons are not conceded by the Defendants. So far as paragraphs 8 and 9 are concerned, I am of the view that what the Plaintiff is seeking to have this Court is to usurp the role of the legislator. In my view, to do so, would be to contravene the spirit of Section 99(3)of the National Constitution. Section 99 of the Constitution is set out in Part VI of the Constitution. This reads as follows:

"Part VI - The National Government.
Division 1. - General Principles.

99. Structure of Government.

(1) 	Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.

(2) 	The National Government consists of three principal arms, namely: -

(a)	 the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and

(b) 	the National Executive; and

(c)	 the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.

(3) 	In principle, the respective powers and functions of the three arms shall be kept separate from each other.

(4) 	Subsection (2) is descriptive only and is non-justiciable." 

Section 99 (3) of the National Constitution has been judicially considered in this jurisdiction. See Peter -v- South Pacific Brewery Ltd [1976] PNGLR 537, S.C.R No2 of 1981; Re s. 19 of the Constitution [1981] PNGLR 518; S.C.R. 1a of 1981, Re Motor Traffic Act [1982] PNGLR 122.

The Authorities I have referred to say one thing in common. That is that the court should not assume the role of the Legislature, and the Legislature should also not usurp the role and function of the judiciary.

In S.C.R. 1a of 1981, Re Motor Traffic Act, [1982] PNGLR 122, the Supreme court, was considering the issue of certain amendments made to the Motor Traffic Act, s 138A (1) (b) of the District Courts Act Ch. 40 and s 38A (1) (c) of the Local Courts Act. These amendments enabled the police to issue summons for traffic infringement, such summons containing the information that if the fine therein imposed was paid within 14 days. That would be the end of the matter and if not paid, the charge would come before the Court designated in the summons and should the defendant fail to appear by Counsel or in person, the Court if "satisfied that the Traffic Infringement Summons has been served ... shall record a plea of guilty and shall consider the sentence which shall be pronounced in open Court ..."

In considering the structure of Government as provided for under s. 99 of the Constitution, Kearney, DCJ (as he then was) said this at p 134;

"It is clear from its structure that the Constitution contemplates a general separation of power between the three principal arms of government - the Legislature, Executive and Judiciary; see Constitution s. 99. 

As a parliamentary system with an executive responsible to Parliament, the separation of powers between the arms cannot be rigid. But, the separation principle remains of basic importance in the Constitution and prohibits incursions by one arm of government upon basic functions of another ..."

I agree that the basic functions of each arms of the government must be dept separate from each other. I agree with the principles set out in the above. In my view, the principle set out in the above paragraph, is entirely applicable to the present case.

I accept Mr Duma's submission that what the Plaintiff is asking this Court to do in paragraphs 8 & 9 of the Amended Originating Summons is for this Court to perform the function of the Legislature, in this case the Madang Provincial Assembly. As the law stands, I cannot do that. In my view the Constitution prohibits this Court from performing the function of the Legislature, s.99 of the Constitution.

On the evidence or rather the lack of evidence before me, I cannot allow paragraphs 8 and 9 to be maintained. Accordingly, I strike out paragraphs 8 and 9 of the Amended Originating Summons as, in my view, they are vexatious. 

It follows therefore, that I cannot allow paragraphs 8 & 9 of the Amended Originating Summons. I am also of the view that this Court does not have the jurisdiction to grant those declarations. I strike them out pursuant to Order 2, Rule 29 of the National Court Rules.

I now deal with paragraphs 1 to 7 inclusive and 10 and 11. I note that the Defendants have conceded to the declarations and the other relief sought by the Plaintiff contained in paragraphs 1,2,3,4,5,6,7,10 and 11 of the Amended Originating Summons. Thus in my view, the issues are cristalzied and accordingly, I now invite counsel pursuant to Order 8, Rule 2 of the National Court Rules to hear counsel on these issues now.

Mr Duma then applied under Order 8 Rule 2 of the National Court Rules for the proceedings to be tried.

Mr Paraka, was not ready to proceed the matter and the matter was then adjourned to 10:00 am on the next day for trial.

On the next day, Mr Paraka informed the court that he has now received instructions to withdraw the proceedings. Accordingly, he applied to have the proceedings withdrawn. Mr Duma did not object to the proceedings to be withdrawn. In the circumstances, I ordered that the substantive proceedings contained in the Originating Summons No 5 of 1995, be withdrawn and the costs of the parties appearance on the Saturday morning is to be borne by each party.

My formal orders are accordingly as follows:

(1) 	that the Interim Injunctions granted to the Plaintiff on the 11th and 12th of January, 1995 are dissolved;

(2) 	that the declarations sought in Paragraphs 8 and 9 of the Amended Originating Summons be struck out;

(3) 	that the proceedings commenced by OS 5 of 1995 is ordered withdrawn.

(4) 	that the Defendant pays the Plaintiff's costs of the 11th and half day of the 12th day of January, 1995 and the Plaintiff pays the costs of the Defendant for the half of the 12th of January, 1995 and the 13th of January, 1995 and that such costs are to be agreed, if not to be taxed.

(5) 	that each party is to pay their own costs in relation to their appearances on the 14 of January, 1995.

Lawyer for the plaintiff: Paul Paraka Lawyers.
Lawyer for the defendant: Blake Dawson Waldron Lawyers.