N3379

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 252 OF 2007(JR)

BETWEEN:

PNG PALM OIL PRODUCERS ASSOCIATION
Plaintiff

AND:

THE HON. SASA ZIBE, MINISTER FOR AGRICULTURE & LIVESTOCK
First Defendant

THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

HITELAI POLUME-KIELE, ATTORNEY GENERAL
AS NOMINAL DEFENDANT FOR THE STATE
Third Defendant

AND:

WILLIE NILMO
Fourth Defendant

___________________________________________________________

OS 396 of 2007 (JR)

BETWEEN:

OIL PALM INDUSTRY CORPORATION
Plaintiff

AND:

THE HON. SASA ZIBE, MINISTER FOR AGRICULTURE & LIVESTOCK
First Defendant

NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:

HITELAI POLUME-KIELE, ATTORNEY GENERAL AS
NOMINAL DEFENDANT FOR THE STATE

Waigani: Injia, DCJ
2008: 30th May
2nd, 3rd June

ADMINISTRATIVE LAW – Judicial review – Appointment of members of Board of directors of statutory corporation – Board of Oil Palm Industry Corporation – Appointment not made in compliance with prescribed procedures on consultation – Appointments quashed – Oil Palm Industry Corporation Act 1992, s 8(1)(e); Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, s 10; Order 16 of the National Court Rules.

STATUTES – Statutory interpretation – Meaning of "three grower representatives" in s 8(1)(e) of Oil Palm Industry Corporation Act 1992, considered – Meaning of a "list of candidates" and "a particular group" in s 10(3) of Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 considered.

Cases cited:
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Counsel:
R Bradshaw, for the plaintiff in OS 252/07
D Liosi, for the plaintiff in OS 396/07
J Alu, for the first defendant in OS 252/07
B Takin, for the fourth defendant in OS 252/07

3 June, 2008

1. INJIA, DCJ: These two applications for judicial review are made under O 16 of the National Court Rules. The applications relate to a decision made by the National Executive Council (NEC) on 22nd March 2007, to appoint three directors and their alternates, as members of the Board of directors of the Oil Palm Development Corporation (OPIC). As the two applications are related, the hearing of the applications were consolidated.

2. In OS 252/07, the plaintiff is OPIC. It challenges the appointment of the fourth defendant in OS 525/07, Mr Willie Nilmo, as a director. In OS 396 of 2007, the plaintiff is the Palm Oil Growers Association (POPA). It challenges the appointment of Mr Mark Baia as a director and Mr Clement Kerahu and Mr Joe Hasi as their alternates.

3. The appointments were made under s 8(1)(e) of the Oil Palm Industry Corporation Act 1992 ("OPIC Act") and s 10 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 "("RSA Act"). The plaintiffs contend that the appointments were made without following the procedures for consultation prescribed by those provisions and the appointments are invalid. The defendants contend the prescribed procedures on consultation were followed and the appointments are valid.

4. Section 8 of the OPIC Act states: 
 
"8. Membership –
 
(1) The Board shall consist of –
(a) the Departmental Head of the Department responsible for  agriculture and livestock matters or his nominee, ex officio; and 
(b)	the Departmental Head of the Department responsible for financial and planning matters or his nominee, ex officio; and
(c)	the Chairman of the Palm Oil Producers Association or his nominee, ex officio; and
(d)	the Chairman of the Oil Palm Research Association or his nominee, ex officio; and
(e)	three grower representatives appointed in accordance with the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004." 

5. Section 10 of the RSA Act states:

"10. Appointment of non ex officio members of Boards of Regulatory Statutory Authorities.

(1)	Where, in relation to a Regulatory Statutory Authority, an appointment of a member of the Board, other than an ex officio member, is required to be made in accordance with the Act or other instrument of incorporation under which the Regulatory Statutory Authority is established, the appointment shall be made, notwithstanding any provisions to the contrary, by the Head of State, acting on advice.
(2)	Where an appointment to which Subsection (1) applies is to be made, the Minister shall—
(a)	prepare a list of candidates for the office; and
(b)	submit the list to the Public Services Commission for its consideration.
(3)	Where, under an Act or other instrument of incorporation, an appointment to an office to which Subsection (1) applies is to be made to represent a particular group, the Minister shall, prior to submitting a list to the Public Services Commission under Subsection (2)(b)—
(a)	carry out genuine consultations with the particular group concerned on its proposed nominees for the office; and
(b)	from the consultations made, compile a summary of the nominees made by the interest group,
for submission to the Public Services Commission for its consideration.
(4)	On the receipt of a list under Section 2(b), the Public Services Commission shall consider whether each applicant satisfies a "fit and proper person criteria" based on the following—
(a)	whether the person is a fit and proper person to hold the particular office; and
(b)	whether the person is competent and of sound judgement to fulfill the responsibilities of that office; and
(c)	whether he is a person whose previous conduct and activities in business or financial matters is not in question and, in particular, that he may not have—
(i)	committed an offence involving fraud or other dishonestly or violence; or
(ii)	been engaged in or been associated with any financial loss due to dishonesty, incompetence or malpractice; or
(iii) been engaged in any business practices appearing to be deceitful or oppressive or otherwise improper (whether unlawful or not) or which otherwise reflect discredit on his conduct; or
(iv) engaged in or been associated with any other business practices or otherwise conducted himself in such a way as to cast doubt on his competence and soundness of judgment, and shall make appropriate recommendations and advice on appointment to the Minister.
(5)	On the receipt of the advice of the Public Services Commission under Subsection (5), the Minister shall make a submission on appointment to the National Executive Council for its consideration.
(6)	In the event that the National Executive Council approves the recommendation of the Minister under Subsection (6), it shall advise the Head of State to make an appointment of a non ex officio member of the Board of the Statutory Regulatory Authority."

6. All parties named in the two proceedings were represented at the hearing and heard on the matter. Of the appointments in dispute, only Willie Nilmo is named as a party to the proceedings in OS 252 of 2007. In respect of OS 396 of 2007, Mark Baia, Clement Kerahu and Joe Hasi did not appear at the hearing and they were not heard on the matter. Service of the application on all persons directly affected by the decision under review and opportunity to be afforded to them to be heard is mandatory requirement: Yanta Development Association In. v Piu Land Group (2005) SC 798. At the hearing, service of the application on these three persons was overlooked by the parties and this Court. On 30th May 2008 when the Court convened to deliver judgment, I raised the matter with counsel and suggested to them several options and adjourned the matter to allow counsel to obtain instructions. On 2nd June 2008, I heard counsel on the matter. Mr Liosi said that they were not served with the application. Counsel then made further submissions on this point. I ruled that they were affected by the decision under review but since the two matters have been fully argued before me and given the urgency of the matter as expressed by the parties and given the issues to be determined are mainly issues of law, I will deliver my judgment now and give them liberty to apply to set aside the judgment on the basis that the proceedings have been conducted ex parte in respect of them. Alternatively, they could appeal my decision in respect of that part of the judgment which affects them.

7. Evidence:

OS 252 of 2007: Plaintiff’s affidavits
Exhibit "A": Affidavit of Mr Brown Bai sworn on 10th May 2007 (RB/9).
Exhibit "B": Affidavit of Mr Felix Bakani sworn on 16th May 2007 (RB/34).

Respondent’s affidavits:
Exhibit "C": Affidavit of Sasa Zibe sworn on 26th February 2007 (RB/49).
Exhibit "E": Affidavit of Willie Nilmo sworn on 25th May 2007 (RB/37).
Exhibit "F": Affidavit of Willie Nilmo sworn on 15th June 2007 (RB/45).

OS 396 of 2007: Plaintiff’s affidavits:
Exhibit "A": Affidavit of Mr Brown Bail sworn on 10th May 2007 (supra).
Exhibit "B": Affidavit of Mr Felix Bakani sworn on 16th May 2007 (supra). 
Exhibit "D": Affidavit of Mr Felix Bakani sworn on 19th July 2007 (RB/16).

Respondent’s affidavits:
Exhibit "C": Affidavit of the Hon. Sasa Zibe sworn on 26th February 2008 (supra).

8. Counsel representing different parties made submissions, both written and oral. I have considered the evidence and submissions.

9. The facts as I find on the evidence before me are as follows. On 5th September 2005, the terms of appointment of three directors and their alternates, representing oil palm growers, expired and it became necessary to make new appointments. The evidence on the steps taken in the consultation process with growers is set out in the affidavit of Mr Felix Bakani who is the Acting General Secretary of OPIC and also in the affidavit of Mr Brown Bai, CBE who is the Chairman of the Board of POPA. Mr Nilmo also gives evidence on consultation. The Minister has not deposed to the steps he took in the consultation process apart from annexing copies of correspondences on the matter in his possession.

10. The process was commenced by OPIC. OPIC sought nominations from POPA for "smallholder grower representatives" to be appointed to the OPIC Board (see par 7 of Mr Bai’s affidavit). There is evidence that OPIC also approached provincial grower associations to submit nominations. For instance, there is evidence that OPIC’s Project Officer Mr Frank Lewis asked the Chairman of Hoskins Oil Plam Growers’ Association (HOPGA) who was Mr Willie Nilmo, to submit his association’s nomination and that Mr Nilmo responded by submitting his own name and his curriculum vitae to OPIC.

11. Mr Nilmo had been elected as Chairman of HOPGA in an election conducted by the Electoral Commission. At the time of his election, he had a criminal conviction record against his name. On 27th August 1999, he was convicted by the District Court on a charge of stealing the sum of K750.00 belonging to two pensioners, namely Maila U’Uba and Clembo John and fined K600.00 in default nine months imprisonment in hard labour. He was also ordered to repay the money to the two complainants. There is evidence that he repaid the money to the two complainants.

12. Mr Nilmo says he submitted his name in his capacity as Chairman of HOPGA. He says when he submitted his name, he did not disclose his criminal conviction record because "this happened some years ago (1999) and at the same time I have been punished for the offence committed as I paid back the sum of K750 which the Court found me guilty."

13. OPIC received eight nominations from various provincial grower associations and POPA which included Mr Nilmo. It then proceeded to assess the suitability of each candidate, by using what it called a "Merit Based Assessment Matrix". A copy of the assessment report is in evidence. In the assessment report, Mr Nilmo’s criminal record is noted and used against him. Whilst he scored points in all other assessment criteria, he scored "0" point under criteria 3 entitled "CHARACTER & STANDING", because of his criminal record. The report recommended three directors and two alternate directors which did not include Mr Nilmo. OPIC’s nominees for director positions were Mr Yawai Mazewin (NGI), Mr James Liedi (Southern region) and Esau Illam (NGI region). Alternate members were Mr Francis Tangawari (NGI region) and Mr Clement Kerahu (Southern region).

14. On 3rd August 2006, OPIC wrote to the Minister and advised him of the appointment process for "grower representatives" and provided the assessment report. A copy of this letter is not annexed to the Minister’s affidavit. On 21st August 2006, Mr Bakani wrote to the Secretary for the Department of Agriculture & Livestock asking him to follow up on the matter to expedite the appointment but received no response.

15. There is no evidence from the Minister that he consulted POPA or any provincial or local grower association. POPA says it was not consulted by the Minister.

16. There is also no direct evidence in the Minister’s affidavit that he prepared and submitted a list of candidates to the Public Service Commission (PSC) under s 10(2) of the RSA Act. However in the PSC’s letter to the Minister dated 12th January 2007, the PSC refers to a letter the Minister wrote to it on 8th December 2006 and states: "this Commission therefore endorses the candidates of the following nominees you have indicated to be directors and alternate directors". From this statement, it can be inferred that the Minister submitted a list of candidates to the PSC in his letter of 8th December 2006, the names of who were the same as the ones endorsed by the PSC. Those names are Mr Willie Nilmo as director with Mr Yawai Mazewin as his alternate, Mr Mark Baia as director with Mr Clement Kerahu as his alternate and Mr Andrew Daisy with Mr Joe Hasi as his alternate. In other words, if the Minister did receive OPIC’s letter dated 3rd August 2006, the Minister must have either ignored or rejected OPIC’s recommendation and compiled his own list of preferred candidates.

17. On 24th January 2007, Mr Bai wrote to the PSC referring to the Minister’s submission to the PSC and strongly objecting to Mr Nilmo’s nomination on the basis of his criminal record and enclosing Mr Nilmo’s certificate of conviction. PSC received this letter after it had given its advice to the Minister on 12th January 2007. On 26th January 2007, PSC forwarded the certificate of conviction to the Minister and recommended against Mr Nilmo’s and asked him to submit a new name for assessment. There is no evidence to show if this letter was received by the Minister before he made his submission to NEC and if the information was included in his NEC submission. There is no evidence to show the Minister received and responded to the PSC’s letter of 26th January 2007.

18. It appears that upon receipt of the PSC’s earlier advice of 12th January 2007, the Minister made a submission to NEC. This is inferred from the letter of the Secretary for NEC dated 7th March 2007 addressed to the Minister which is in evidence. There is no evidence as to the contents of this submission but the NEC’s decision made on 22nd March 2007, shows that the NEC appointed the same persons that the Minister submitted to PSC for its advice on 12th January 2007. From this evidence, it can be inferred that the Minister recommended to NEC that the same names submitted to PSC and which were endorsed by the PSC.

19. The appointment was gazetted on 29th March 2007. Since publication of the notice, the plaintiffs have disputed the appointments through a number of correspondences and in meetings with the Minister.

20. The main issue for determination is whether the Minister consulted the appropriate person(s) or group(s) or body before compiling and submitting the list of candidates to the PSC as required by s 10(3) of the RSA Act. The question then arises as to who is the appropriate person, group or body that the Minister is required to consult. The answer to this question is to be found on a proper construction of the term "grower representatives" in s 8(1)(e) of the OPIC Act, and the term "a list" in s 10(2) and "a particular group" in s 10(3) of the RSA Act.

21. Mr Liosi submits OPIC facilitates the appointment by consulting the growers and then advises the Minister. OPIC calls for nominations from grower associations and once nominations are received, it assesses their suitability and compiles a list of nominees which it submits to the Minister. The Minister has no discretionary power to interfere with this list and compile his own list. He must accept the list as it is and submit the same to the PSC for its advice. This is clear from s 10(3) which says that following genuine consultations between the particular group concerned, in this case the oil palm growers association represented by OPIC, the Minister "shall" "compile a summary of the nominees made by the interest group". OPIC being in the industry would be in the best position to compile the list of nominees and not the Minister. That is why s 10(3) is expressed in mandatory terms.

22. Mr Alu submits s 10(2) gives the Minister the power to compile his own list following consultation with growers. OPIC is a regulatory body and does not fall within the meaning of "grower" in s 8(1)(e) of the OPIC Act and it is not a "particular group" that has to be consulted by the Minister under s 10(3) of RSA Act. OPIC is not given any power by these provisions to conduct a merit-based assessment of nominees similar to the one used by PSC, compile its own list and recommend its own preferred nominees. The growers referred to in s 8(1)(e) of OPIC Act is not OPIC. OPIC is a regulatory body whose nominees for directors are being processed for appointment. The oil palm growers are represented by grower associations as provided for in the OPIC Act and it is those groups that the Minister should consult under s 10(3) of the RSA Act and not OPIC.

23. In my view, the meaning of the words and phrases found in s 8(1)(e) of OPIC Act and s 10 of RSA Act can be ascertained from the context of the provisions themselves. If the words are clear and unambiguous, they should be accorded their plain and ordinary meaning.

24. Section 8(1)(e) of the OPIC Act is clear and specific on the representation of oil palm "growers" on the OPIC Board. The OPIC Act contains provisions for oil palm growers to be constituted in groups in the form of "grower associations". The term "grower associations" is defined in s 3 of the OPIC Act as follows:

"Grower Association" means an Association declared under Section 2(3)(a), and in respect of a Project Area, means the Grower Association for that Project Area."

25. Section 2(2) provides for the Minister to declare, on recommendation of the Board, an area to be a palm oil Project Area. Section 2(3)(a) and (4) provides for the Minister to declare, by notice in the National Gazette, on recommendation of the Department Head, "an association to be a recognized Grower Association for the Project Area for the purpose of this Act". Section 2(4) provides that in making the declaration, the Minister must satisfy himself that the association—

(a) has its membership comprised solely of oil palm growers in the Project Area; and
(b) represents legitimate oil palm growers in the Project Area; and is---
(i) an association duly incorporated under the Association Incorporation Act(Chapter 142); or
(ii) an association or group which, in the opinion of the Minister, represents 
small-holders of the Project Area".

26. There is no evidence before me on a list of grower associations declared by the Minister under s 2 of the OPIC Act. But it appears there are provincial grower associations which are affiliated to a national association which is known as POPA. There are at least two provincial associations identified in these proceedings and they are HOPGA and Oro Provincial Oil Palm Producers Association. I assume that these associations have been declared under s 2. There could be other provincial grower associations and grower associations at the local and village level.

27.	In my view the term "three grower representatives" in s 8(1)(e) of the OPIC Act means three persons who represent the oil palm "growers" as constituted in group(s) recognized by the OPIC Act, in the form of incorporated "Grower associations" or other unincorporated grower associations representing "small-holders" or small oil palm growers in a Project Area declared by the Minister under s 2(4). These three persons represent the interest of the growers on the OPIC Board. It is therefore incumbent on the grower associations, either at the national, provincial or local level, to individually or collectively through POPA, nominate their candidates for appointment to the appropriate appointing authority. In my view, OPIC does not fall under the definition of a "grower" or "grower association" under the OPIC Act. OPIC is a regulatory body and it cannot speak for growers on matters that affect the growers. As such OPIC should not be involved in all aspects of the appointment process under s 8(1)(e), including inviting nominations from grower associations, assessing the suitability of each candidate, making recommendations on its preferred list of candidates.

28. There is no question that an appointment under s 8(1)(e) of the OPIC Act qualifies under s 10(1) of the RSA Act. As the appointments concern members other than ex officio members, the Head of State acting on advice of NEC, is the appropriate appointing authority. Section 8(1)(e) expressly provides for the appointments to be made under the RSA Act.

29. Subsections (2) and (3) of the RSA Act must be read together. In my view, there are two distinct processes in compiling a list under Subsection (2). The first relates to appointments which do not involve representation of any "particular group". Under Subsection (2), the Minister is empowered to compile a list of candidates of his choice. There is no requirement for consultation with any person or group prior to compiling and submitting that list. 

30. The second process is manifest in Subsection (3) which qualifies Subsection (2). If the appointment "is to be made to represent a particular group", then prior to compiling "a list", he must carry out genuine consultations with the "particular group concerned". What does "genuine consultation" involve? Subsection (3)((a) & (b) is specific on the nature of the consultation. In order for the group concerned to submit its proposed nominees, the Minister should request for and receive the particular group’s list of "proposed nominees" and then based on that list, the Minister should compile a summary of those nominees. The question is whether that summary of nominees becomes the Minister’s list under Subsection (2), in which case the Minister has no power to interfere with the group’s list of nominees and compile his own list of candidates outside of those nominated by the group. There is no clear answer to this question.

31. I accept Mr Liosi’s submission that the Minister must submit to the PSC the list of nominees provided by the particular interest group without alteration. In my view, the "summary of proposed nominees" compiled by the Minister then constitutes his list which he submits to the PSC under Subsection (2). The selection of nominees under s 10(3) is merit-based. As such, there must be meaningful consultation with the group concerned and it is the group’s choice of nominees which the Minister must process by way of a summary of nominees which he simply submits to the PSC for its advice. This is not to say that the Minister as the political head of the oil palm industry has no say in the appointment of directors of the OPIC Board which comes under his ministerial responsibilities. He will have held genuine consultations with the interested groups in putting together their proposed nominees and he will also have a say in the NEC of which he is a member of, when the NEC deliberates on the matter. The list of nominees that he compiles and submits under s 10(2) is a summary of the list of nominees which the group has provided to him after consulting with grower associations and he should not interfere with that list. For to do so would be inconsistent with Subsection (3) and detrimental to the interest of the "particular group" for the Minister to compile a new list of nominees of his choice of candidates with little or no regard to the list of nominees supplied to him by the groups concerned. Such action would allow room for politicization of the interest group’s industry and defeat the purpose of the merit-based appointment process under the RSA Act thereby tainting the appointment process.

32. Applying these principles to the present case, OPIC is a regulatory body and it is not given any specific power or function under the OPIC Act to perform in the appointment process of Board members representing oil palm growers. OPIC does not represent oil palm grower groups or associations. Unless the enabling statute, in this case the OPIC Act, gives express power to the OPIC board to facilitate that consultation process by inviting and receiving nominations from grower associations, assessing the suitability of each nominee and making its own recommendations on its choice of candidates in preferred order, OPIC should not assume such power. I also do not see any good reason why the OPIC board or OPIC’s management should be involved in setting the state and the agenda for the appointment of its own board members by assessing the suitability of nominees and expresses its own preference of appointees. For OPIC through its management to do so is to place itself in a position of conflict of interest.

33. The Minister is required to carry out genuine consultations with the grower associations directly. The grower themselves would come up with their list of nominees from which the Minister would compile a summary of nominees and submit it to the PSC. Under the consultative scheme set out in s 10 of the RSA Act, OPIC is not a grower and it cannot represent the interest of growers in the appointment of their representatives on the OPIC Board. The appropriate "group" that the Minister should consult is POPA which represents all the small grower associations based in the provinces. The Minister could also consult, regional, provincial or local grower associations, particularly if they are not members of POPA. The OPIC Act sets out an elaborate scheme for growers to be represented by "Grower associations", which are required to be declared under s 2: see definition of "Grower associations" in s 3 and recognition of incorporated or unincorporated associations in s 2. POPA is the national body to which provincial or local grower associations are affiliated. The three directors represent these growers and it is these grower associations which should be consulted by the Minister, directly or through POPA and not OPIC.

34. For these reasons, I reject Mr Liosi’s submissions. The Minister was not bound to accept OPIC’s assessment report and its recommendations of candidates. POPA is saying it was not consulted. One of the provincial growers’ association, Oro Provincial Oil Palm Producers Association is saying it was not consulted by the Minister. The Minister does not say in his evidence that he carried out such consultation. I accept Mr Bradshaw’s submission that the Minister did not consult POPA and other grower associations. If the Minister is saying he did, as I understand Mr Alu’s submission to be, the onus falls on the Minister to show that he carried out the necessary consultations. He has not done so in this case.

35. Consultation with POPA or oil palm growers is a mandatory requirement. I am satisfied on the evidence before me that the Minister failed to consult POPA or other provincial or local grower associations as required by s 10(3) of RSA Act. Any consultation with OPIC did not constitute a valid consultation under s 10(3). Therefore the list of candidates that was submitted to the PSC by the Minister on 8th December 2006 and endorsed by the PSC, was flawed. Consequently, the Minister’s recommendation to the NEC, the NEC’s approval of the same candidates and appointments made by the Head of State on advice, was tainted by the flaw in the consultation process and the decision to appoint these persons cannot stand in law.

36. Consultation with grower associations is a mandatory requirement under s 10(3) of the RSA Act. Failure to observe this mandatory requirement constituted an error of law which is reviewable by this Court and an order of certiorari lies to quash the decision: Kededo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

37. For purpose of clarity and for future purposes, I suggest the consultation process between the Minister and grower associations should be conducted in the following manner: 

1. The Minister determines the existence of the vacancy in the office of directors under s 8(1)(e) of the OPIC Act.

2. The Minister should conduct genuine consultations with POPA and if necessary, provincial or local oil palm grower associations which have been declared under s 2(4) of the OPIC Act. It may be necessary for the grower associations to speak with one voice in determining their list of proposed nominees. POPA appears to be ideally placed to represent their interests. Provincial or local grower associations should establish common understanding with POPA for POPA to represent their interest. In such circumstances, the Minister may consider consultation with POPA to be adequate consultation for purposes of s 10(3) of the RSA Act.

3. As part of the consultation process, the Minister should request POPA to submit its list of proposed nominees, together with relevant information to support each nominee.

4. Upon receipt of POPA’s submission on its proposed nominees, the Minister should compile a summary of each and all the candidates which then becomes his list of candidates under s 10(2)(a) of the RSA Act. 

5. The Minister must submit that same list to the PSC for its advice.

38. There were extensive arguments advanced by Mr Takin on behalf of Mr Nilmo as to his client’s suitability for the position notwithstanding his criminal record. Similar arguments could have been raised by the other appointees had they been heard on the application. However it is not necessary to determine those matters because the appointments are quashed on a point of law.

39. Finally, there is no challenge to the appointment of the third member of the board namely Andrew Daisy and Mr Yawai Mazewin as his alternate. They were appointed in the same NEC decision. This Court’s decision now may have implications on their appointments. After this decision, if, as a matter of law, their appointments cannot be sustained in law, then I would suggest the appropriate application may be made by way of fresh application for judicial review, to quash their appointments. Alternatively, the NEC, as the appropriate appointing authority could revoke their appointments in accordance with law.

40. For these reasons, I grant the application in each matter with costs to the plaintiffs.

41. The formal orders of the Court are:

1.	The applications for judicial review in OS No. 252 of 2007 and OS No. 396 of 2007 are both granted.

2.	An order in the nature of certiorari is granted quashing the decision of the National Executive Council made on 22nd March 2007 appointing Mr Willie Nilmo and Mr Mark Baia as directors and Mr Clement Kerahu and Mr Joe Hasi as alternate directors, of the Board of Directors of Oil Palm Industry Corporation. Their appointments are declared invalid.

3.	The plaintiff in OS 396 of 2007 shall effect personal service of this order and a copy of this judgement on Mr Mark Baia, Mr Clement Kerahu and Mr Joe Hasi and file affidavit of service.

4.	Mr Mark Baia, Mr Clement Kerahu and Mr Joe Hasi are granted liberty to apply to set aside this order insofar as the order relates to them, within thirty days of the service of this order on each of them, by giving five days notice to the parties in both OS 396 of 2007 and OS 252 of 2007.

5.	The defendants in each matter pay each plaintiff’s costs of the application.

6.	The time for entry of this order is abridged to the time of settlement by the Registrar which shall take place forthwith.

__________________________
Liosi Lawyers: Lawyer for the plaintiff in OS 252 of 2007
Bradshaw Lawyers	: Lawyer for the plaintiff in OS 396 of 2007
Joe Alu: Lawyer for the first and second respondents in  both matters
B T Gobu & Associates: Lawyer for the fourth respondent in OS 252 of 2007