N3563

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 680 OF 2008

BETWEEN:

IN AN APPLICATION FOR JUDICIAL REVIEW COMMENCED BY ORIGINATING SUMMONS

BETWEEN:

MIAI LARELAKE
Plaintiff

AND:

HON. HAVILA KAVO, 
MP in his capacity as Governor of Gulf Province and 
Chairman of the Gulf Provincial Executive Council
First Defendant

AND:

GULF PROVINCIAL EXECUTIVE COUNCIL
Second Defendant

AND:

GULF PROVINCIAL GOVERNMENT
Applicant/Third Defendant

AND:

HON. PETER O’NEIL in his capacity as the
MINISTER FOR PUBLIC SERVICE
Fourth Defendant

AND:

HON. JOB POMAT, MP in his capacity as the
MINISTER FOR INTER-GOVERNMENT RELATIONS
Fifth Defendant

AND:

SIMON PETER
Sixth Defendant

AND:

RIGO LUA, DR. LINDA TAMSEN and DR. PHILIP KEREME PH.D in their capacity as COMMISSIONERS of the PUBLIC SERVICES COMMISSION
Seventh Defendants

AND:

PUBLIC SERVICES COMMISSION
Eight Defendant

AND:

GRAND CHIEF RT. HONOURABLE SIR MICHAEL T. SOMARE, MP in his capacity as CHAIRMAN for and on behalf of the members of the
NATIONAL EXECUTIVE COUNCIL
Ninth Defendant

AND:

NATIONAL EXECUTIVE COUNCIL
Tenth Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Eleventh Defendant

Waigani: Davani .J
2008: 24th, 25th November

LEGAL REPRESENTATION – Provincial Governments – who is authorized to appear as counsel – Attorney-Generals Act ss.7(i), s.13(i); Claims By and Against the State Ac s.4; Organic Law on Provincial and Local Level Governments

Facts

The applicant applies to the Court seeking a review of the first defendant’s decision to suspend him as the Administrator of the Gulf Provincial Government. However, an issue arose as to legal representation where the plaintiff’s counsel raised the propriety of Mr. Soi’s appearance as the first, second, third and sixth defendants’ lawyer. Mr. Soi also raised issue with Mr. Koaru’s appearance for the same defendants, more particularly the third defendant, alleging conflict of interest. Mr. Koaru is the employed legal officer for the Gulf Provincial Government.

Issues

1.	Whether Mr. Soi is authorized to appear for the first, second, third and sixth defendants?

Reasons

1.	Only the Attorney-General can brief the Solicitor-General to appear for the State.

2.	Only the Attorney-General can brief a private lawyer, other than the Solicitor-General, to appear for the State.

3.	Because the State includes a Provincial Government, that the proper process including tender processes under the Public Finances (Management) Act, leading to the appointment of a lawyer for the Gulf Provincial Government, must be complied with by the Administration and decisions made by the Provincial Executive Council, to be reflected in its minutes.

4.	That the Provincial Executive Council and the Provincial Assembly are an integral part of the Provincial Government and are not separate entities.

Cases cited

•	Peter Aigilo v The Independent State of Papua New Guinea (No.1) (2001) (N2103)

•	SCR No. 1 of 1998: Reservation pursuant to s.15 of the Supreme Court Act (2001) SC672

•	Independent State of Papua New Guinea v Zachary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2003) SC 716

Counsel:

Messrs M. Wilson and Ipape, for the plaintiff
Mr S. Soi, for the first, second, third and Sixth defendants
Mr R. Koaru, for the third defendant

RULING
(No. 1)

25 November, 2008

1.	DAVANI .J: The plaintiff, Miai Larelake is an applicant for Leave for Judicial Review, which leave was granted on 13th November, 2008. The application for Judicial Review is in relation to the plaintiff’s suspension as the Administrator of the Gulf Provincial Administration. The plaintiff seeks various declaratory orders which effectively are that the suspension is ultra vires and therefore a nullity.

2.	On 20th November, 2008, the matter came before me for substantive hearing. However, before the calling of evidence, Mr. Roddy Koaru and Mr. Sarea Soi of counsel, informed the Court of a dispute in relation to legal representation for the Gulf Provincial Government, third defendant. Mr. Koaru who is the Provincial Legal Officer for the Gulf Provincial Government alleges that Mr. Sarea Soi was not properly instructed and authorized by the second and/or third defendants to appear for them as their lawyer. Upon hearing those submissions, I ordered that counsel file relevant affidavit material and return before me with proper submissions on the issue of legal representation which I will deal with as a preliminary matter prior to proceeding to the substantive hearing of the Judicial Review.

3.	Mr. Michael Wilson of Warner Shand, Lawyer for the plaintiff, shared the views expressed by Mr. Koaru, that the issue of legal representation must be resolved before the matter progresses to substantive hearing. 

The application – legal representation

4.	In accordance with my orders, Mr. Koaru filed a Notice of Motion on 20th November, 2008 which Motion was subsequently amended on 24th November, 2008 and which sought six orders, five of which are fairly substantive but when summarized, state basically that Mr. Soi should be stopped by the Court, from acting as the third defendant’s lawyer. This Motion is supported by his own affidavit sworn and filed on 20th November, 2008 and the affidavit of Vincent Heari sworn and filed on 20th November, 2008. In response to that affidavit, Mr. Soi filed and relies on the affidavit of the present Governor of the Gulf Province, the Honourable, Havila Kavo, MP, affidavit sworn and filed on 21st November, 2008.

5.	Because the affidavits were filed and served at very short notice, more particularly the Governor’s affidavit, counsel did not have the opportunity to raise objections, if any. Therefore, the position I took was that, I would give the affidavit material the appropriate weight they deserve, more particularly, in instances where affidavits contain objectionable material.

6.	The relevant legislations governing briefs by the State or government instrumentalities are the Attorney-Generals Act 1989 and the Organic Law on Provincial Governments and Local-Level Governments (‘OLPGLLG’).

7.	I discuss below the above mentioned legislation and their relevance to this issue.

OLPGLLG

8.	The Gulf Provincial Government does not have a provincial legislation governing its existence. It therefore relies on the OLPGLLG to govern its existence. A system of Provincial and Local Level Governments is established by s.5 of that Act. A Provincial Government has the capacity to sue and be sued (s.6 (b) of OLPGLLG).

9.	A Provincial Government is established by s.10 of that Act. Its provincial legislature is known as the Provincial Assembly or by any local name (s.10 (2)).

10.	The executive arm of the Provincial Government is the Provincial Executive Council (‘PEC’) and consists of various members including the Provincial Governor and the Deputy Provincial Governor (s.23(1) (2)).

11.	The principle functions of a Provincial Executive Council is to implement laws and policies made or adopted by the Provincial Assembly and to implement the laws and policies of the National Government applying to the provinces (s.23(5)). The Provincial Executive Council then establishes various committees including joint provincial planning and budget priorities committees and other committees as it considers necessary to carry out its functions.(s.25(1)(a)(b))

Attorney-Generals Act 1989 (‘AG Act’)

12.	According to s.3 of the Attorney-Generals Act, for the purposes of s.156 (2) of the Constitution, the Attorney-General is the principal legal advisor to the National Executive Council. The duties, functions and responsibilities of the Attorney-General are set out at s.7 (a) to (j) of the Act. One of these duties, functions and responsibilities is also to instruct lawyers within or outside the country to appear for the State in any matter. (S.7 (i)).

13.	This takes us to the next issue as to whether the State includes a provincial government. This issue is well settled in this jurisdiction, as has been held in many cases, one of which is the Supreme Court Reservation 1 of 1998 (2001) SC 672, where the Supreme Court held that the State includes a provincial government.

14.	This decision is based on several reasons, one of which is that the provincial government has its own budget priorities which, in my view, will include, in all likelihood, a budget for brief-outs to private lawyers.

15.	According to SCR 1 of 1998, and as provided for in the OLPLLG, the National Government provides grants to Provincial Governments in the form of administrative support grants, development grants and other grants (s.91). These grants are all provided for in Subdivision D of that Act. The National government or its statutory agencies may also share with Provincial Governments the revenues of the National Government generated from sources within a province. (s.99).

16.	Should the Provincial Government have tendered for this job?

17.	The Public Finance (Management) Act 1995 (‘PFMA’) and the Financial Instructions are very specific as to who should tender and for what amounts.

18.	Additionally, Part IX of the PFMA provides for grants, budgets, loans, etc for provincial governments. It also provides that the conditions of payment are provided for in the Financial Instructions. The Financial Instructions also provide for Provincial Supply and Tenders Board and that this Board may invite provincial and local-level government’s tenders and execute provincial and local-level government contracts for the purpose of the disposal of goods, works or services up to a value of K3.0m (Part XIV Division 2 of Financial Instructions). The Supply and Tenders Boards are established under or by s.39 of the PFMA.

19.	The above is a clear demonstration that the State includes a provincial government and the Gulf Provincial Government is no exception.

20.	No doubt, the legal costs to be occasioned by Mr. Soi’s firm may be up to the value of K3.0m and may be the subject of a tender which tender was not called for. But that issue is not before me so I will not dwell on it. But I can only say that the provision of legal services is a service which will constitute a portion of the Gulf Provincial Government’s budget and is one that should have been tendered, unless there are written instructions from that Government which specify a certain amount which need not be tendered. But I have not seen evidence of that.

21.	Is Mr. Sarea Soi properly authorized by the Gulf Provincial Government to be its lawyer?

22.	Mr. Soi relies on the affidavit of Hon. Havila Kavo sworn on 21st November, 2008. Mr. Kavo deposes at par. 6 of his affidavit that the members of the Gulf Provincial Executive Council considered the suitability of the Department of Gulf’s in-house lawyer, Mr. Koaru to represent him, the Gulf Provincial Executive Council, the Gulf Provincial Government and Simon Peter, the Acting Gulf Provincial Administrator. Upon questioning by the bench as to whether there are recorded minutes confirming that consultation, Mr. Soi answered that it was done by telephone. I will not accept that evidence because it is hearsay evidence. Minutes of the Gulf Provincial Executive Council must be put before the Court to confirm that such a decision was made.

23.	At par. 11 of his affidavit, Mr. Kavo deposes that the Gulf Provincial Executive Council resolved to engage Mr. Sarea Soi of Soi & Associate Lawyers to represent him and the other above mentioned parties and that they did not appoint Mr. Koaru to represent the Gulf Provincial Government in the proceedings. Again, Mr. Soi has not put before the Court minutes of this meeting. The material contained in Mr. Kavo’s affidavit is hearsay. I will not accept that.

24.	As to his letter attached to his affidavit dated 7th November, 2008 which letter he swore as Governor and Chairman of the Gulf Provincial Executive Assembly, that is just his letter, it is not minutes of the Provincial Executive Council. He cannot, as an individual, appoint Mr. Soi. There are processes in place which must be followed, some of which I covered above. None of these was done.

25.	In saying that, I refer to Peter Aigilo vs The Independent State of Papua New Guinea (No.1) which held that s.13 (1) of the Attorney-Generals Act provides in no uncertain terms that the primary function of the Solicitor-General is as an Advocate for the State in matters coming before the Court in Papua New Guinea and that the Solicitor-General shall only accept instructions from the Attorney-General. I accept Mr. Koaru’s submissions that if the Provincial Government is to brief private law firms, it must be done through the Office of the Attorney-General in accordance with requirements set out in the Public Finances (Management) Act 1995. This was not done in this case.

26.	Does Mr. Koaru have a conflict of interest? 

27.	Mr. Soi submitted that Mr. Koaru has a conflict of interest, in that he used to work very closely with the plaintiff prior to the plaintiff’s termination. The plaintiff was formerly the Provincial Administrator of the Gulf Provincial Administration. Mr. Koaru is the Legal Officer for the Gulf Provincial Government. He was presumably employed under a Contract. As the Legal Officer, he is a public servant and is paid under the designated salary scale of the National Public Service. Of course, he would have had to work with the plaintiff at one time. After the plaintiff’s termination, he would still continue to work for the defendants in his capacity as the legal officer.

28.	Additionally, it is not Mr. Koaru who is aggrieved and in Court but Mr. Larelake. The assertions made by Mr. Kavo in paras. 6, 7 and 8 of his affidavit are all hearsay. There is no evidence from the various individuals alleging conflict of interest by Mr. Koaru, before the Court. If there is any body who should complain about Mr. Koaru having a conflict of interest, it should be the plaintiff, Mr. Larelake.

29.	This argument has no merit.

30.	For those reasons, I find that Mr. Soi is not properly authorized to appear and act for the third defendant.

31.	But what of the first and second defendants? Because Mr. Soi is not properly authorized by the third defendant to act for it, how does that affect Mr. Soi’s relationship as a lawyer, with the first, second and sixth defendants.

32.	Because I have not heard submissions from counsel on this, I will hear submissions, after which I will make a final decision. I adjourn to allow counsel to consider the issues.

RULING
(NO. 2)

1 December, 2008

1.	DAVANI J. Counsel returned before me with submissions on the issues.

2.	Mr. Soi submitted the following;

i.	The first and second defendants are two separate entities and are not bound by my ruling made earlier;

ii.	That the first defendant can brief a lawyer of his choice and is not bound by the PFMA or the Attorney-Generals Act. Mr. Soi relied on the Independent State of Papua New Guinea v Zachary Gelu, Solicitor-General and Manorburn Earthmoving Limited (2003) SC 716, (‘Manoburn case’) when submitting that.

iii.	That this matter should be referred to the full bench of the Supreme Court as a reference under s.18 of the Constitution to consider the question whether the tender process under the PFMA should still be complied with where a client is in urgent need of legal representation.

3.	Both Messrs Koaru and Ipape adopted their submissions earlier made before me. Mr. Ipape, more particularly, submitted for the plaintiff that;

i.	The first, second and third defendants are not separate entities. That the first and second defendants are part of the third defendant, by virtue of the OLPLLG and the first defendant, its employee.

ii.	Mr. Soi should not appear for the first, second and third defendants because he is not properly briefed to appear, to have been done in accordance with the Attorney Generals Act and the OLPPLG.

4.	I deal with all submissions together.

5.	First, I will address the submissions as issues, focusing more on the contentions raised by Messrs Soi and Ipape. I term these issues to be;

i.	Whether the first and second defendants are two separate entities?

ii.	Whether the first and second defendants, more particularly, the first defendant is not bound by process under the PFMA, the Attorney Generals Act, the Claims By and Against the State Act (‘CBASA’), and whether he can brief a lawyer of his choice?

iii.	Whether this is a matter that is suitable for referral to the Supreme Court as a reference under s.18 of the Constitution?

Discussion of the Issues

Issue No. 1 - Whether the first and second defendants are two separate entities?

6.	Mr. Soi submits that the Gulf Provincial Executive Council is a separate entity from the Gulf Provincial Government and can sue and be sued in its own capacity. He submits also that the same applies to the first defendant, who, although is sued in his capacity as the Governor, should be treated as an individual. He relied on s.17 of the OLPLLG in saying that. S.17 reads;

"17.	The Provincial Governor

(1)	An office of a Provincial Governor in each province is hereby established.

(2)	Subject to this Organic Law, the Member of the National Parliament representing the provincial electorate shall be the Provincial Governor."

7.	Section 187A of Part VIA of the Constitution provides for a system of Provincial Governments and Local-Level Governments for Papua New Guinea.

8.	Section 187C of the Constitution provides for the constitution, functions, etc of Provincial Governments and Local-Level Governments.

9.	Part II of the OLPLLG gives effect to s. 187C of the Constitution by providing for the institutional structure of Legislative and Executive arms of Provincial Governments and Local-Level Governments. Section 10(1) of the OLPLLG establishes a Provincial Government for each province. Section 10(2) of the OLPLLG establishes the provincial legislature to be known as the Provincial Assembly.

10.	Subdivision B of Part II of the OLPLLG provides for the Executive Arm of Provincial Governments. Section 17 of that Act establishes the office of the Provincial Governor for each province. Further, S.17(2) of that Act, states that the Member of the National Parliament representing the provincial electorate shall be the Provincial Governor.

11.	Section 23(1) of the OLPLLG states that "There shall be an executive arm of a Provincial Government to be known as the Provincial Executive Council".

12.	The Provincial Executive Council is made up of the Provincial Governor, the Deputy Governor and the Chairman of each of the permanent committees of the Provincial Executive Council appointed by the Governor. (S.23 of OLPLLG)

13.	Therefore, I agree with Mr. Ipape that the Provincial Government system is an abstract whereby its Constitution provides for the Legislative arm (Provincial Assembly) and Executive arm (the Provincial Executive Council). In my view, without these two arms, a Provincial Government will not exist nor can it function.

14.	In relation to the first defendant, he is being sued in his capacity as the Governor of the Gulf Province and the Chairman of the Gulf Provincial Council and not in his personal capacity.

15.	Section 187C of the Constitution provides for the constitution, functions, etc of Provincial Governments and Local-Level Governments. Subsection (2)(a) and (c) of the same makes provision for the mandatory establishment of an executive of the Provincial Governments and an office of the head of the executive.

16.	The office of the Provincial Governor is established under s.17 of the OLPLLG. Subdivision B of Part II of the OLPLLG provides for "Executive Arm of Provincial Governments". Section 22 of the OLPLLG provides for the "political and executive responsibilities of the Provincial Governor and the Deputy Governor" which inter alia requires the Provincial Governor or in his absence the Deputy Provincial Governor to be politically responsible to the Provincial Assembly for the overall development and good governance of the province.

17.	Section 23 of the OLPLLG establishes the Provincial Executive Council whose Chairman by virtue of S.23 (3) of same is the Provincial Governor.

18.	Hence, the first defendant occupies a public office and by virtue of election as such, he becomes the Chairman of the Gulf Provincial Executive Council.

19.	The first defendant made the decision (which is the subject of this proceeding for review) by exercising his purported powers by virtue of the public office he now occupies. The first defendant is part of the executive arm of the Gulf Provincial Government. The first defendant is being sued in his capacity as the Governor of the Gulf Provincial Government, an integral part of the Executive arm of the Provincial Government.

20.	In relation to the second defendant, the Gulf Provincial Executive Council, having been established under s.23 of the OLPLLG, states at S.23(1) that "there shall be an executive arm of the Provincial Government to be known as the Provincial Executive Council." 

21.	The principal function of a Provincial Executive Council is as provided under S.23(5) of the OLPLLG and that is to implement the laws and policies made or adopted by the Provincial Assembly and to implement the laws and policies of the National Government applying to the province.

22.	The Gulf Provincial Executive Council is an arm of the Gulf Provincial Government as provided for under the OLPLLG and as such, the Gulf Provincial Executive Council cannot be separated from the Gulf Provincial Government as it is an integral part of the Gulf Provincial Government as intended by the legislation and by parliament.

23.	Therefore, Mr. Sarea Soi of Soi & Associates cannot act for the Gulf Provincial Executive Council which is an integral part of the Gulf Provincial Government which is the State unless he is briefed out by the Attorney General as is the requirement under s.7 (i) of the Attorney Generals Act.

24.	Part II of the OLPLLG provides for the Institutional Structure of the Legislative and Executive Arms of the Provincial Governments and Local-Level Governments. Division 1 Subdivision A of the same Act provides for the Legislative Arm of Provincial Governments which is the Provincial Assembly as provided under s.10(2) of the OLPLLG.

25.	Division 1 Subdivision B of the OLPLLG provides for the "Executive Arm of Provincial Governments" which is the Provincial Executive Council established under s. 23 of the same, comprising the Provincial Governor, his Deputy and the Chairman of each of the permanent committees of the Provincial Executive Council appointed by the Governor.

26.	No doubt, based on the above, a Provincial Government is made up of two components, being its legislative (Provincial Assembly) and executive (Provincial Executive Council) arms as is intended by that legislation. Without these two components, there is no provincial government.

27.	The above conclusions are further enhanced by SCR No. 1 of 1998: Reservations pursuant to s. 15 of the Supreme Court Act (2001) SC 672, where the Supreme Court held that the term "State" includes a Provincial Government. This, together with the actions, policies or decisions made by the two arms of the Provincial Governments and the decisions of the Provincial Government are decisions made by the "Provincial Government."

28.	Therefore, I reiterate again, that Sarea Soi of Soi & Associates Lawyers cannot act or represent the first and second defendants in this proceedings who are components of the third defendant because as decided in Peter Aigilo v The Independent State of Papua New Guinea (No.1) (2001) N 2103, all litigation functions for and on behalf of the State is vested in the Solicitor-General unless Mr. Soi was briefed by the Attorney-General as is the requirement under s.7 (i) of the Attorney Generals Act.

29.	In my view, if Mr. Soi continues to act for the first, second and third defendants who are the State, without being briefed by the Attorney-General to appear, creates a dangerous precedent, where lawyers, other than the Solicitor-General and its officers, can appear for the State in all matters concerning the State without being briefed by the Attorney-General. The proper process must be followed first, before a lawyer other than the Solicitor-General, appears for the State.

Issue No. 2 – Whether the first and second defendants, more particularly, the first defendant, is not bound by the PFMA, the OLPLLG and Attorney Generals Act and can brief a lawyer of their choice?

30.	The first defendant is sued in his capacity as the Governor of the Gulf Provincial Government. This is referred to in par. No. 5 of the Originating Summons which states or seeks orders for a declaration that the first defendant seeks these orders "in his capacity as Gulf Provincial Governor and Chairman of the Gulf Provincial Executive Council…". The same pleading is set out at par. no. 5 of the plaintiff’s Statement in Support of the Application for Leave for Judicial Review. The Statement states further at par. No. 2 at pg. 5 of the Statement that, "the first defendant is the Provincial Governor of the Gulf Province and Chairman of the second defendant and that as such, is being sued in those respective capacities".

31.	At par. No. 3, pg. 5 of the Statement, it pleads "the second defendant is the executive arm of the third defendant and is responsible for the decision to suspend the plaintiff as the Provincial Governor of the Gulf Province."

32.	In relation to the third defendant, the plaintiff pleads in his Statement at pg.5, par. No. 4 that "the third defendant is established under s. 10 of the Organic Law on Provincial Governments and Local-Level Governments and can sue and be sued under its own name and style."

33.	In relation to the sixth defendant, the Statement pleads at par. No. 7, pg. 6 that "the sixth defendant is an adult person of the age of majority and is being sued as the purported Acting Provincial Administrator of the Gulf Province." 

34.	The pleadings speak for themselves, that the first defendant is being sued as the Governor of the Gulf Province. Mr. Soi’s reliance on the Independent State of Papua New Guinea v Manoburn Earthmoving Limited & Anor (supra) and submissions that the first defendant can brief a lawyer of his own choice, is misconceived and incorrect. This is because the issue in the Manoburn case was in relation to legal representation for the executive arm of the National Government, namely the National Executive Council and other agents, servants and instrumentalities of the State. The first defendant is a servant of the State and is being sued in that capacity. 

35.	It is the position at law that the law relating to the ability of the State of Papua New Guinea to sue and be sued is to be found in the "Acts of Parliament" (see s.247(2) of the Constitution). The two relevant acts are the Attorney Generals Act and CBASA.

36.	As I have already seen, the Attorney-General is given the power to instruct any lawyer to act for the State (s.7 (i) of AG’s Act). This power is to be read together with s.13 of the AG Act. It reads;

"13.	Functions of Solicitor-General

…

(3)	The primary function of the Solicitor-General is to appear as an advocate for the State in matters coming before the Courts in Papua New Guinea.

(4)	In the exercise, of his functions under subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General.

…".

37.	In practice, where the State is a party in any litigation before the Courts, the Solicitor-General may act as an advocate if instructed to do so by the Attorney-General in accordance with s.13(2) of the Attorney-Generals Act. Alternatively, the Attorney-General may, in the exercise of his discretion, instruct any other lawyer within or outside the country to act for the State (s.7 (i) of the Attorney-Generals Act). (See also State v Manoburn (supra)). In this case, the first defendant was not instructed by the Attorney-General, to seek the services of Soi & Associates, in his capacity as Governor. Additionally, neither the second nor ultimately, the third and sixth defendants’ decision to engage Soi & Associates Lawyers, was sanctioned by the Attorney-General.

38.	Therefore, Mr. Soi is incorrect when he submits that the first defendant, or any defendant for the matter, can brief a lawyer of their choice.

39.	The Supreme Court in Manoburn also refers to s.4 of the Claims By and Against the State Act which is the provision on suits by the State and which reads;

"4.	Suits by the State

Suits on behalf of the State, including relator proceedings, may be brought in the name of the State –

(a)	By the Attorney-General; and

…".

40.	That provision makes it clear that suits on behalf of the State may be brought by the Attorney-General in the National Court and the District Court or in the case of a District Court, by any person appointed for that purpose by the Minister. 

41.	Manoburn also holds that where the State is a party in any litigation before the Court, the Solicitor General may act as an advocate if instructed to do so by the Attorney-General in accordance with s.13(2) of the Attorney Generals Act. Where the Solicitor-General is instructed, he must act in accordance with the instructions of the Attorney-General, such as to settle or not to settle a matter. (pg. 12 of Manoburn)

42.	Or alternatively as we have seen, the Attorney-General may, in the exercise of his discretion, instruct any other lawyer within or outside the country to act for the State (s.7(i) of the Attorney Generals Act) (pg.12 of Manoburn).

43.	As we have seen, the Governor of the Gulf Province together with the Provincial Executive Council is an integral part of the Gulf Provincial Government. They cannot be separated. Again, this is because the Provincial Government is made up of two components, namely its legislative (Provincial Assembly) and its executive (Provincial Executive Council) as intended by the Parliament in the Organic Law. Therefore, without the two arms or constituents, there is no provincial government. 

44.	In relation to Mr. Soi’s submissions that because of the urgency of the matter, that the Gulf Provincial Government could not have placed a tender for the provision of legal services, I find that this submission shows there to be a total lack of planning by the Gulf Provincial administration, if that is the case. The Provincial Government should already have planned and budgeted for legal services, for suits by or against it, actions which it would either defend or pursue and have before the Court evidence of these administrative decisions and compliance with procedures. It requires decisions properly made by the Executive arm of the Provincial Government to change the status quo. In this case, no evidence is before me that the second defendant did make such a decision, which was later sanctioned by the Attorney-General.

Issue No. 3 – Whether this is a matter that is suitable for referral to the Supreme Court as a reference under s. 18 of the Constitution?

45.	Section 18 of the Constitution, more particularly s.18(2), refers to the interpretation or application of any provision of a Constitutional law. Mr. Soi has asked that I refer the question of whether the first defendant can brief a lawyer of his own choice, especially in urgent cases. I am of the view that this question need not be answered by the Supreme Court as the Attorney-Generals Act, the CBASA, the OLPLLG and the Constitution have already answered that.

46.	The answer is clear that;

•	The State includes the third defendant, Gulf Provincial Government;

•	The first defendant is sued as the Governor, thus a servant and agent of the State, not an individual;

•	The sixth defendant is sued as the Acting Provincial Administrator and the claim is not personal to him (Simon Peter) because it is as a result of the plaintiff’s termination, that he was then appointed.

•	That only the Attorney-General can brief a lawyer to appear for the State;

•	The second defendant is an integral part of the third defendant, including the first defendant;

•	That the defendants, more particularly the first defendant, has or have not complied with proper process when securing the services of Soi & Associates.

47.	Again, I find that Soi & Associates is or are not authorized to appear for the first, second, third defendants and sixth defendant.

48.	The substantive matter is now referred to hearing by the Judicial Review Judge for December 2008.

49.	Costs of this application are reserved to the substantive Judicial Review.

Warner Shand Lawyers: Lawyer for the plaintiff
Soi & Associates Lawyers: Lawyer for the first, second and sixth Defendants
In House Lawyer for Gulf Provincial Government: Lawyer for the third defendant
Lawyer for fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh defendants not in attendance