Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kavo v Maipakai [2010] PGNC 82; N4094 (16 July 2010)

N4094

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 354 OF 2010

HON HAVILA KAVO MP
Plaintiff

V

HON MARK MAIPAKAI MP
First Defendant

HON TITUS P BOMBOM MP
Second Defendant

HON CHARLES MAIU MPA
PRESIDENT, IHU RURAL LOCAL-LEVEL GOVERNMENT
Third Defendant

HON KEITH FAREAPO MPA
PRESIDENT, KEREMA URBAN LOCAL-LEVEL GOVERNMENT
Fourth Defendant

HON IKA OAVERA MPA
PRESIDENT, CENTRAL KEREMA RURAL LOCAL-LEVEL GOVERNMENT
Fifth Defendant

HON ROBERT PAIVA MPA
PRESIDENT, EAST KEREMA RURAL LOCAL-LEVEL GOVERNMENT
Sixth Defendant

HON HENRY AMO MPA
PRESIDENT, TAURE-LAKEKAMU RURAL LOCAL-LEVEL GOVERNMENT
Seventh Defendant

HON RICHARD PANAMA MPA
PRESIDENT, KOTIDANGA RURAL LOCAL-LEVEL GOVERNMENT
Eighth Defendant

HON WILSON BAIDU MPA
PRESIDENT, WEST KIKORI RURAL LOCAL-LEVEL GOVERNMENT
Ninth Defendant

HON NUN SUMBAI MPA
PRESIDENT, EAST KIKORI RURAL LOCAL-LEVEL GOVERNMENT
Tenth Defendant

HON JONAH KAIRI MPA
PRESIDENT, BAIMURU RURAL LOCAL-LEVEL GOVERNMENT
Eleventh Defendant

HON JOHN ALALA MPA,
PRESIDENT, KAINTIBA RURAL LOCAL-LEVEL GOVERNMENT
Twelfth Defendant

SIMON MALARA
Thirteenth Defendant

Waigani: Cannings J
2010: 16 July

INJUNCTIONS – motion for interim injunction pending trial – whether the plaintiff raises serious questions for trial – assessment of prospects of success – other considerations to be assessed in deciding whether to grant interim relief.

PROVINCIAL GOVERNMENTS – provincial assemblies – whether the court should intervene in the internal affairs of a parliament.

The plaintiff was removed as Governor of his province pursuant to a decision of the provincial assembly. The plaintiff challenged the decision by originating summons on various grounds including that the provincial assembly was unlawfully constituted and that procedures under the Provincial Governments Administration Act 1997 were not complied with. He applied by motion for an interim injunction restoring him to the position of provincial governor pending the trial of the originating summons.

Held:

(1) It is incumbent on a party seeking an interim injunction pending a trial to show that:

(a) there are serious questions to be tried and that an arguable case exists;

(b) an undertaking as to damages has been given;

(c) damages would not be an adequate remedy if the interim order is not granted;

(d) the balance of convenience favours the granting of the interim order; and

(e) the interests of justice require that the interim order be made.

(2) Here, (a) was satisfied but not strongly as the grounds of challenge are not compelling and (b) was satisfied but (c), (d) and (e) were not.

(3) In particular the interests of justice did not favour granting an interim injunction as the courts should be reluctant to intervene in the affairs of a parliament unless there has been clear and flagrant breach of the law. This is not such a case.

(4) The motion was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878
Haiveta v Wingti [1994] PNGLR 197
Ipatas v Balakau [1996] PNGLR 248
James Eki Mopio v The Speaker [1977] PNGLR 420
Joshua v Meya [1988-89] PNGLR 188
Kipo v Maha (1994) N1252
Koraea v Karava & Gulf Provincial Government (1989) N791
Koroka v Kapal [1985] PNGLR 117
SCR No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments (2010) SC1058
SCR No 3 of 1999: Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628
SCR No 3 of 2000; Re Sitting Days of Parliament and Regulatory Powers of Parliament (2002) SC722

Counsel

S Soi, for the plaintiff
G Epor, for the defendants

16 July, 2010

1. CANNINGS J: The plaintiff is the member for Gulf Provincial and until 30 June 2010 was widely regarded as and accepted without contention to be the Governor of Gulf Province.

2. On 30 June 2010 a meeting of the defendants, claiming to constitute the Gulf Provincial Assembly, was held in the provincial capital, Kerema. A motion of no-confidence was moved in the plaintiff and he was removed as governor and replaced by the second defendant.

3. On 2 July 2010 the plaintiff filed an originating summons and on 12 July 2010 an amended originating summons was filed, challenging the legality of the meeting of 30 June 2010 and the decision to remove him as Governor and the decision to elect the second defendant as Governor.

4. The trial of the substantive relief sought by the amended originating summons has not been held and the plaintiff has filed a motion seeking an interim injunction, which would preserve his position as Governor and restrain the defendants and all others from giving effect to the decisions made at the meeting on 30 June 2010. The plaintiff wants the court to make such interim orders pending the outcome of the trial, which would determine the issue of the legality of the meeting of 30 June 2010.

CONSIDERATIONS TO BE TAKEN INTO ACCOUNT WHEN DECIDING WHETHER TO GRANT INTERIM INJUNCTIONS

5. The principles that the National Court applies when a party comes before it with a motion seeking an interim injunction or any sort of interim order designed to preserve the status quo pending a trial were recently confirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. It is incumbent on a plaintiff to show that:

1. there are serious questions to be tried and an arguable case exists;
   
2. an undertaking as to damages has been given;
   
3. damages would not be an adequate remedy if the interim order is not granted;
   
4. the balance of convenience favours the granting of the interim order; and
   
5. the interests of justice require that the interim order be made.
   

6. The principles can conveniently be applied by posing five questions. They are drafted so that a 'yes' answer will be a factor weighing in favour of granting an interim order and a 'no' answer will work against making such an order.

1 Are there serious questions to be tried and do the plaintiffs have an arguable case?

7. This requires the Court to make an assessment of the prospects of success of the plaintiff's substantive action by looking at the originating process (in this case, the amended originating summons) and the evidence that has been adduced to date. As I pointed out in Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878 the issue is not simply whether the plaintiff has raised serious allegations, but whether he appears to have a reasonable prospect of succeeding at the trial. This requires the Court to identify with some degree of precision the cause of action that the plaintiff is relying on or in this case the grounds on which it is alleged that the events and decisions of 30 June 2010 at Kerema were unlawful; and then to consider the evidence that appears to be available in support of those grounds.

8. The main grounds of challenge appear to be that:

(a) The effect of the June 2010 Supreme Court decision in SCR No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments (2010) SC1058 was not to reinstate presidents of urban and rural local-level governments to provincial assemblies. The Supreme Court decision only declared that the 2006 amendments to the Organic Law were unconstitutional. No consequential orders were made. There is considerable doubt whether local-level government presidents are entitled to resume their positions as members of provincial assemblies. This is a matter that the National Parliament still has to decide.

(b) Proper notice of the meeting of 30 June 2010 was not given. The provisions of the Provincial Governments Administration Act 1997 were not complied with.

(c) The third defendant unlawfully assumed the position of chairman of the meeting.

(d) The person who assumed the role of Clerk of the Assembly, the thirteenth defendant, was a dismissed or at least suspended officer of the Public Service at the time.

9. As to (a), I follow the argument, but it must be said to be a novel one in view of recent developments around the country where LLG presidents in a number of provinces have been resuming duties as members of provincial assemblies. It may be desirable, in order to bring more clarity to the status of those who were directly affected by the 2006 amendments to the Organic Law, for the Parliament to address this issue via a further amendment to the Organic Law. But I doubt that it is necessary. The prospects of this argument succeeding at a trial are not high.

10. As to (b), the point is arguable but would need to be considered in light of the alleged fact that the defendants gave notice to the plaintiff a couple of weeks before 30 June 2010 to convene a meeting of the provincial assembly, but he refused to do so.

11. Ground (c) would appear likely to rise or fall with ground (b). There is evidence that the plaintiff, who would in normal circumstances be entitled to be chairman of the provincial assembly meeting, made a conscious decision not to attend the meeting of 30 June 2010. In his absence, the third defendant assumed the role of chairman, apparently with the acquiescence of other members of the assembly. On the face of it this would appear a reasonable course of action to have been taken.

12. As to (d), there is competing evidence on file as to Mr Malara's employment status at the material time. But even if it were established at the trial that he was in fact a dismissed officer I would not think that that alone would invalidate decisions made at the meeting.

13. To sum up, question 1 can be answered yes, but that answer must be qualified by saying that I do not consider the plaintiff's case to be strongly arguable. None of the grounds of illegality raised are compelling.

2 Has an undertaking as to damages been given?

Yes.

3 If an interim order is not granted, would damages be an inadequate remedy?

14. If an interim order is not granted but the plaintiff ultimately proves at a trial that he was unlawfully removed as Governor he may be compensated with an award of damages, which I consider would be an adequate remedy. Question (3) is answered no.

4 Does the balance of convenience favour the granting of interim orders?

15. As I said in Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878 this requires the court to ask: what is the best thing to do on an interim basis taking into account the conflicting interests? What will happen if an interim order is made? The plaintiff, Mr Kavo, will resume duties as Governor. What will happen if an interim order is not granted? The second defendant, Mr Bombom, will be the Governor for the time being. I think the more convenient of those two scenarios is to allow the apparent political will of the province, as expressed through the vote of no-confidence in the plaintiff, to be given effect. Question (4) is answered no.

5 Do the interests of justice require that interim orders be made?

16. As to where the interests of justice lie it is useful to reflect on the traditional reluctance of the courts in common law jurisdictions to intervene in the internal affairs of a parliament, which is what a provincial assembly is. That approach found expression in PNG in the early years after Independence in the leading case of James Eki Mopio v The Speaker [1977] PNGLR 420. The Supreme Court held that it had no jurisdiction to hear a challenge to decisions of the Speaker of the National Parliament based on the alleged failure of the Speaker to adhere to procedures prescribed by the Constitution for the appointment of a Prime Minister. The same approach was adopted in the National Court in a series of actions based on the alleged failure of provincial assemblies to follow provincial constitutions and other laws regulating their procedures, eg Koroka v Kapal [1985] PNGLR 117, Koraea v Karava & Gulf Provincial Government (1989) N791, Kipo v Maha (1994) N1252, Ipatas v Balakau [1996] PNGLR 248.

17. As time went on judicial supervision of parliaments increased. A more interventionist approach, which had been foreshadowed by Andrew AJ in Joshua v Meya [1988-89] PNGLR 188 (a challenge to decisions of the Morobe Provincial Assembly, the Tutumeng) was adopted by the Supreme Court in the watershed case of Haiveta v Wingti [1994] PNGLR 197. That interventionist approach – which reflects the notion that no institution established by or under the Constitution, including the National Parliament or a provincial assembly, is above the law – was reinforced by the Supreme Court's decisions in SCR No 3 of 1999: Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628 and SCR No 3 of 2000; Re Sitting Days of Parliament and Regulatory Powers of Parliament (2002) SC722. It is now clear that if a parliament is proven to have breached the Constitution or some other law, the Supreme Court, or in an appropriate case the National Court, may and should intervene to make orders remedying the breach of the law that has occurred.

18. However, such intervention by the courts into the affairs of a parliament should in my view be reserved to cases in which it is clearly proven that a breach of the law regulating the affairs of the parliament has occurred. The courts should be reluctant to intervene to grant interim orders. There might be a case where a parliament has flagrantly and clearly failed to comply with the Constitution, in which case the court may well be justified in intervening by way of granting an interim injunction. But this is not such a case. There appears no doubt that the issues raised by the plaintiff are justiciable but as I said earlier the arguments he wishes to make are not compelling. Caution should be exercised in granting interim orders that have the effect of intervening in the affairs of a parliament. Question (5) is answered no.

Conclusion

19. Only two of the five questions have been answered in the affirmative. Therefore I will refuse the relief sought. I will also make orders to bring some certainty into the administration and governance of the province.

ORDER

(1) All relief sought in the notice of motion filed by the plaintiff on 2 July 2010 is refused.

(2) For the avoidance of doubt the first to twelfth defendants shall be regarded as members of the Gulf Provincial Assembly and the second defendant shall be regarded as Governor of Gulf Province until further order of the National Court, pending the determination of the amended originating summons.

(3) The parties bear their own costs.

(4) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Ruling accordingly.

___________________________________________
Soi & Associates Lawyers: Lawyers for the Plaintiff
George Epor Lawyers: Lawyers for the Defendants