N4309

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 288 OF 2007

BETWEEN:

SIR PATO KAKARAYA
Plaintiff

AND:

ANO PALA, as the Clerk of the National Parliament
First Defendant

AND:

JEFFREY NAPE, as the Speaker of the National Parliament
Second Defendant

AND:

THE NATIONAL PARLIAMENT
Third Defendant

AND:

THE STATE
Fourth Defendant

Waigani: Davani, J
2011: 9th March
10th June

DAMAGES – Damages sought – plaintiff, former politician and nominee – Governor-General – appointment of – process in the appointment of Governor-General – whether process complied with – ss.87, 88 of Constitution; ss.2, 3, 4, 5, 6, 7, 8, 9 of Organic Law on Nomination of the Governor-General.

DAMAGES – Speaker and Clerk of Parliament – whether they owe a duty of care to the plaintiff – whether they were negligent in the performance of their duties – whether the plaintiff can claim compensation, general, exemplary, punitive and special damages – Constitution ss.23(1)(b), 57 and 58.

Facts:

On 4th December, 2003, the plaintiff, a former statesman and parliamentarian, was elected to the Governor-General's post. However, this election was challenged in the Supreme Court by the late Sir Albert Kipalan in proceedings SC 728. The challenge was on the premise that the nomination form completed by the plaintiff was defective in that the correct date was not inserted and stated. The plaintiff claims damages because he alleges the first and second defendants more particularly, were negligent in the manner in which they conducted their duties when they did not properly advise the plaintiff of the steps he was to take in relation to the completion of the nomination form. The plaintiff also relied very much on the Supreme Court's findings in SC 721 and SC 728 to make the claims in negligence.

Issues:

(i)	Whether the nomination of a person to the Constitutional Office of the Governor-General is a privilege or a right?

(ii)	Subject to the Court's ruling on Issue 1 above, whether or not the Clerk and the Speaker of Parliament have;

(a)	a constitutional duty to the Plaintiff to ensure that the proposal, nomination and the eventual appointment as the Governor General was conducted in accordance with the procedures prescribed by the Organic Law;

(b)	breached their Constitutional duties by not ensuring that the Plaintiff's proposal, nomination and the eventual appointment as the GG was conducted in accordance with the procedures prescribed by the OLNGG.

(iii)	Subject to the Court's ruling in relation to Issue 1 above, whether or not the then Clerk of Parliament, Mr. Ano Pala;

(a)	Was negligent or reckless when he advised the Plaintiff to state a date on the proposal form when he ought to have advised the Plaintiff that he was rejecting the proposal form because it was undated.

(b)	Was negligent when he did not advise the Plaintiff to complete another proposal form or even provide another proposal form for the Plaintiff to complete.

(c)	Was reckless when he was not clear in his advice to the Plaintiff that he would not accept the form without the date being put on the proposal form.

(d)	Was negligent or reckless when he accepted the amended proposal form from the Plaintiff on the second occasion when he should have rejected the amended proposal form and advised the Plaintiff to fill a new form and submit it.

(e)	Had a duty of care under the OLNGG to advise the Speaker of Parliament to cast his vote for purposes of resolving an equality of votes when there is an equality of votes on the second ballot between two candidates. 

(f)	Was negligent during the nomination process when there was an equality of votes between the Plaintiff and Sir Paulias Matane (30 votes each) when he failed to advise the Speaker to cast his vote at that point to resolve the equality of votes and thereby breaching Section 9(5) of the OLNGG.

Reasoning:

The reasons discussed throughout are premised around the Court's findings in relation to issue (i), i.e whether the nomination of a person to the Office of the Governor-General is a privilege or a right. The Court found that the OLNGG must be read as a whole, that is not a law made to regulate a Constitutional right nor does it state the Constitutional right it purports to regulate. That the activities it regulates are not the expressions of a Constitutional right. So, when the plaintiff exercised his democratic right to accept nominations for the first and second election, he freely choose to do that and freely participated in the process. That if he had won the nomination, that is not an injustice. Therefore, the opportunity to stand for nomination to the Office of the Governor-General is not a Constitutional right and is a privilege vested in Parliament, that is extended to whoever satisfies the qualifications set out under s.87 of the Constitution. Which means that the nomination of a person to the Office of the Governor-General is a privilege and not a right.

To answer the issues posed above;

(i)	No.
(ii)	No.
(iii)	No.
(iv)	No.
(v)	No.
(vi)	No.
(vii)	Yes. But this duty is owed to Parliament and not to the plaintiff.
(viii)	Yes. Also, the plaintiff sought a remedy in the matter Election of Governor-General (No.2) (2008) SC 728.

It was never Parliament's intention to allow parties who were aggrieved by the failure of the Speaker or Clerk in the observation of their statutory duties under the OLNGG, to institute claims for damages. If it was Parliament's intention, it would have expressly provided for this remedy. Instead, Parliament only made provision for aggrieved parties to institute proceedings for orders for a declaratory nature or to appeal (s.18(1) of the Constitution or s.5(3) of OLNGG).

Orders:

(1)	The plaintiff's claim is dismissed in its entirety.

(2)	The plaintiff shall pay all defendants' costs of the proceedings, to be taxed if not agreed.

Case Cited:
Papua New Guinea Case

•	Re Election of Governor-General (No.2) (2004) SC 728
•	Review Pursuant to Constitution; In the matter of the Organic Law on the Nomination of Governor-General (2004) SC 752
•	Sir Albert Kipalan & Ombudsman Commission v. National Parliament & Ors (2003) (SC 721
•	Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates (2010) SC1057

Overseas Cases

•	Clegg, Parkinson & Co v Earby Gas Co [1896] 1 QB 592

Counsel:

J. Lome, for the plaintiff 
J. Amanu, for the First, Second and Third Defendants
K. Iduhu, for the Fourth Defendant

DECISION
10th June, 2011

1.	DAVANI .J: Before me for substantive hearing is Writ of Summons and Statement of Claim filed for and on behalf of the plaintiff by Greg Manda Lawyers on 27th March, 2007. The plaintiff claims compensation under s.23(1)(b) and ss.57 and 58 of the Constitution. He also claims general damages, special damages, punitive and exemplary damages. Alternatively, the plaintiff makes the claim for a similar remedy or damages under the Common Law, Custom or Underlying Law. The plaintiff also claims interest and costs of the proceedings.

2.	The claim is opposed by all the named defendants. The first to the third defendants filed their Defence on 10th May, 2007, through Kelly Naru Lawyers. The fourth defendant filed its Defence on 2nd September, 2010, through Fairfax Legal.

Background facts

3.	The plaintiff is a former politician and senior statesman. He was a Member of Parliament representing Wapenamanda District in the Enga Province and held several Ministerial Portfolios for three parliamentary terms.

4.	In 2003, he ran for the Governor General's post. This occurred on 28th November, 2003 when he submitted his nomination form for appointment as Governor General. However, the Clerk of Parliament then, Mr Ano Pala, rejected the proposal form stating that the date on which the then Governor for Madang, James Yali, made the proposal, was not stated on the nomination form.

5.	The plaintiff then returned the proposal form with the inserted date "28th September, 2010", to the Office of the Clerk of Parliament. This was accepted by the Clerk.

6.	The election for the appointment of the Governor General was conducted on 4th December, 2003 by the first and second defendants. After a vote, the plaintiff won. On 16th December, 2003, he was appointed by the Queen as Governor General. However, his appointment was challenged in the Supreme Court by the late Sir Albert Kipalan and the Chief Ombudsman Commission. This challenge was premised on the fact that the plaintiff's nomination form was defective and therefore he was not eligible to be proposed and appointed as Governor General.

7.	The Supreme Court, consisting of 5 Judges, heard the plaintiff's application. Thereafter, the Supreme Court held or declared the plaintiff's nomination as Governor General to be null and void. This annulment was based on the evidence that the plaintiff had submitted a defective proposal form which although accepted by the Clerk of Parliament, should not have been accepted. This decision is numbered SC 728 and was delivered on 31st March, 2004.

8.	In these proceedings, the plaintiff claims that as a result of the actions of the first to the third defendants, he was traumatised and psychologically affected. He claims damages.

9.	The hearing is on both liability and quantum.

The Agreed Facts 

10. The facts as agreed to by all parties are;

•	The Plaintiff is a former politician, leader and a senior statesman of Papua New Guinea. 

•	The Plaintiff was educated up to Grade 3 and has little or no other formal education. 

•	On 18th November, 1997, the Queen as the Head of State appointed Sir Silas Atopare as the Governor General ('GG') of the Independent State of Papua New Guinea from 20th November, 1997, for a six (6) year term, to expire on 19th November, 2003. 

•	On 7th July, 2003, the Acting Speaker of the National Parliament announced that Sir Silas Atopare's term of office as GG would expire on 19th November, 2003, and that the Constitution requires that the Speaker call a meeting of Parliament within three (3) months before the expiry of the GG's term. The Acting Speaker also called for nominations including a response from the then GG if he wished to hold office for a second term.

•	During the period 10th to 18th September, 2003, nine (9) proposal forms for nomination of a person for appointment as GG were submitted to the Clerk of Parliament. These included Sir Silas Atopare's proposal form seeking re-appointment for a second term. The nine candidates including the Plaintiff in no particular order, were;

(i)	Sir Albert Kipalan
(ii)	Sir Arnold Amet
(iii)	Mr Bernard Narokobi
(iv)	Mr Mathew Bendumb
(v)	Sir Pato Kakaraya
(vi)	Sir Paulias Matane
(vii)	Sir Thomas Kavali
(viii)	Sir Tom Koraea 
(ix)	Sir Silas Atopare

•	Parliament met on 18th September, 2003 with the then Speaker, the Hon. Bill Skate presiding. The Speaker informed Parliament that Sir Silas Atopare had been proposed for a second term as GG. The then Member for Western Province moved that the Parliament resolve that Sir Silas Atopare be approved for appointment for a second term.

•	A ballot was conducted in accordance with the Constitution. Sir Silas Atopare failed to muster the required two-thirds absolute majority vote so he was excluded from the race.

•	The Speaker then informed Parliament that the Clerk had furnished him a list of eight (8) candidates for nomination as GG

•	On 18th September, 2003, Parliament proceeded to appoint the late Sir Albert Kipalan as its incumbent for the GG post. 

•	However, the nomination of Sir Albert Kipalan was challenged in the Supreme Court by the Chief Ombudsman and the Ombudsman Commission in proceedings SC OS No 2 of 2003 alleging non- compliance with the Constitution and the Organic Law on the Nomination of the Governor-General ('Organic Law' or 'OLNGG'). 

•	On 21st November, 2003, in proceedings SC OS No. 2 of 2003 between the Ombudsman Commission and 2 Others v. The National Parliament and 5 Others,SC 721 (unreported), the Supreme Court five men bench comprising the late Kapi CJ, Injia DCJ (as he then was), Salika J (as he then was), the late Jalina J and Sakora J annulled the appointment of Sir Albert Kipalan as the GG on the grounds that the proposal forms failed to comply with the requirements of the Organic Law and therefore ordered that a new election be conducted. 

•	In its decision, the Supreme Court ordered, among others, that;

(i)	The then Speaker of Parliament, the Honourable Bill Skate, inform Parliament in accordance with Section 3 of the Organic Law on the Nomination of the GG, that as a result of this decision, there is a vacancy in the office of the GG,

(ii)	The Clerk of the Parliament, Mr Ano Pala, shall conduct and supervise a new election for the Parliament's nominee for the office of GG in accordance with the Organic Law on the Nomination of the GG.

•	In accordance with the Court Order, on 25th November, 2003, the Acting Speaker of Parliament, Hon. Jeffery Nape informed Parliament of the vacancy in the office of the GG and invited proposals for nominations, further advising Parliament that nominations would close on 28th November, 2003.

•	Accordingly, on 28th November, 2003, the Plaintiff submitted his nomination form to the Clerk of Parliament for appointment as GG. 

•	However, the Clerk of Parliament rejected the proposal form because the Plaintiff's proposer, James Yali, then Governor for Madang, did not state the date on the proposal form. Also, the Clerk of Parliament did not tell the Plaintiff of the date that ought to be entered in the blank space.

•	Accordingly, the Plaintiff returned with the proposal form and inserted the date "28th November, 2010", which he gave to the Clerk of Parliament. The Clerk then checked the proposal form and accepted it. The Plaintiff asked him if the form and the details in it were correct. The Clerk advised that it was. The Plaintiff then left the proposal form with the Clerk. 

•	The election for the appointment of the GG was conducted on 4th December, 2003 by the First and the Second Defendants in accordance with the processes and procedures under the Constitution and the Organic Law which eventually resulted in the Plaintiff being nominated as the GG of Papua New Guinea. 

•	On 16th December, 2003, the Plaintiff was appointed by the Queen as the GG of Papua New Guinea in accordance with the Constitution. 

•	Prior to the Declaration of Loyalty and Declaration of Office before the Chief Justice, the Plaintiff's appointment was challenged in the Supreme Court by the late Sir Albert Kipalan and the Chief Ombudsman Commission in proceedings SC OS No. 3 of 2003, between Sir Albert Kipalan and 1 other v. The National Parliament and 5 Others. The challenge was premised on the fact that the plaintiff's proposal form was defective and that he was not eligible to be proposed and appointed as GG.

•	The Supreme Court five men bench comprising the late Kapi CJ, Injia DCJ (then), the late Hinchliffe J, Salika J (then) and Sakora J delivered its decision on 31st March, 2004 wherein the Plaintiff's nomination as GG of Papua New Guinea was declared null and void, decision SC 728. 

•	Further, the Supreme Court unanimously found that the Speaker failed to comply with Section 9(5) of the Organic Law to resolve the equality of votes when there was an equality of votes between the Plaintiff and late Sir Albert Kipalan of 30 votes each, which occurred on 4th December, 2003. The Speaker then conducted another ballot to determine which candidate was to be eliminated. That occurred on 4th December, 2003 when Sir Paulias Matane and the Plaintiff each scored 30 votes. The Speaker decided to conduct another ballot to determine the candidate to eliminate. The ballot was conducted and Sir Paulias Matane and the plaintiff each scored 30 votes. On the second ballot, Sir Albert Kipalan scored 31 votes. 

•	The process then continued where another ballot was taken between the Plaintiff and the late Sir Albert Kipalan. This resulted in 52 votes in favour of the Plaintiff with Sir Albert Kipalan scoring 39 votes. The Speaker then declared the plaintiff as Parliament's nominee.

•	On 27th May, 2004, the then Acting Speaker of the National Parliament, the Honourable Jeffrey Nape announced that Parliament would proceed to elect its nominee for the Office of the GG which seat fell vacant following the Supreme Court's decision of 31st March, 2004, declaring null and void the election of Sir Pato Kakaraya on 4th December, 2003.

•	The names of the candidates furnished to him by the Clerk of Parliament were;

(1)	Sir Albert Kipalan;
(2)	Sir Joseph Nombri;
(3)	Mrs. Nahau Elizabeth Rooney;
(4)	Sir Pato Kakaraya; &
(5)	Sir Paulias Matane.

•	These names were listed in alphabetical order. As there were 96 members in Parliament, the Acting Speaker advised the Clerk of Parliament to distribute 96 ballot papers to each member to write the name of their candidate.

•	The first ballot was collected and counted. The results were as follows;

Sir Albert Kipalan	19	
Sir Joseph Nombri	13	
Mrs. Nahau Elizabeth Rooney	12	
Sir Pato Kakaraya	24	
Sir Paulias Matane	28	
		
•	The Acting Speaker then informed the members that there were no informal votes and that the candidate with the least number of votes, Mrs. Nahau Rooney would be excluded from further ballot and that another ballot would be held.

•	Before the Clerk rang the bell, the Acting Speaker informed the Members of the names of the candidates for the next or the second ballot. They were;

Sir Albert Kipalan
Sir Joseph Nombri
Sir Pato Kakaraya
Sir Paulias Matane.

•	Again, 96 ballot papers were distributed and members were requested to write the name of one of the 4 candidates on their ballot paper.

•	After counting the second ballot, the results were as follows;

Sir Albert Kipalan	23	
Sir Joseph Nombri	16	
Sir Pato Kakaraya	28	
Sir Paulias Matane.	29	

•	Again the Acting Speaker announced that the candidate with the least number of votes being Sir Joseph Nombri would be excluded from the next ballot. He again informed the members of the names of the candidates for the next ballot being:

Sir Albert Kipalan
Sir Pato Kakaraya 
Sir Paulias Matane

•	The Acting Speaker then advised the Clerk to distribute 96 ballot papers and members were advised to write the name of their preferred candidate for the third ballot.

•	After counting the completed ballot papers, the Acting Speaker announced the results of the third ballot, which was;

Sir Albert Kipalan	29	
Sir Pato Kakaraya	30	
Sir Paulias Matane	37	

•	The Acting Speaker then announced the exclusion of the candidate with the least numbers of votes being Sir Albert Kipalan and that he would be excluded from the fourth ballot.

•	Again 96 Ballot papers were distributed and members were asked to write the name of their preferred candidate.

•	After collecting and counting the votes from the fourth ballot, the Acting Speaker announced the results as;

Sir Pato Kakaraya	46	
Sir Paulias Matane	50	

•	The Acting Speaker then declared Sir Paulias Matane as Parliament's nominee to occupy the office of the GG.

•	On 27th November, 2007, National Court proceeding WS No. 288 of 2007 were initially instituted as WS No. 270 of 2007.

Issues

10.	The agreed issues are;

(i)	Whether the nomination of a person to the Constitutional Office of the GG is a privilege or a right?

(ii)	Subject to the Court's ruling on Issue 1 above, whether or not the Clerk and the Speaker of Parliament have;

(a)	a constitutional duty to the Plaintiff to ensure that the proposal, nomination and the eventual appointment as the Governor General was conducted in accordance with the procedures prescribed by the Organic Law;

(b)	breached their Constitutional duties by not ensuring that the Plaintiff's proposal, nomination and the eventual appointment as the GG was conducted in accordance with the procedures prescribed by the OLNGG.

(iii)	Subject to the Court's ruling in relation to Issue 1 above, whether or not the then Clerk of Parliament, Mr. Ano Pala;

(c)	Was negligent or reckless when he advised the Plaintiff to state a date on the proposal form when he ought to have advised the Plaintiff that he was rejecting the proposal form because it was undated.

(d)	Was negligent when he did not advise the Plaintiff to complete another proposal form or even provide another proposal form for the Plaintiff to complete.

(e)	Was reckless when he was not clear in his advice to the Plaintiff that he would not accept the form without the date being put on the proposal form.

(f)	Was negligent or reckless when he accepted the amended proposal form from the Plaintiff on the second occasion when he should have rejected the amended proposal form and advised the Plaintiff to fill a new form and submit it.

(g)	Had a duty of care under the OLNGG to advise the Speaker of Parliament to cast his vote for purposes of resolving an equality of votes when there is an equality of votes on the second ballot between two candidates. 

(h)	Was negligent during the nomination process when there was an equality of votes between the Plaintiff and Sir Paulias Matane (30 votes each) when he failed to advise the Speaker to cast his vote at that point to resolve the equality of votes and thereby breaching Section 9(5) of the OLNGG.

Analysis of evidence and the law

11.	I set out below the relevant provisions of the Constitution and the OLNGG which provide for the nomination and appointment of a Governor General.

The Constitution

"87. 	Qualifications for appointment

(1) The Governor-General must be a citizen who:-

(a)	is qualified to be a member of the Parliament (except for the reason that he occupies the office of Governor-General); and 

(b)	is a mature person of good standing who enjoys the general respect of the community.

(2)	The question, whether for the purposes of Subsection (1) a person is a person to whom Subsection (1)(b) applies, is non-justiciable.

(3)	The Governor-General must not hold any office or position or engage in any calling other than that of, or an office or position associated with, his office as Governor-General, except with the consent of the Head of State, acting with, and in accordance with, the joint advice of the National Executive Council and the Ombudsman Commission.

(4)	A request for the consent of the Head of State under Subsection (3) shall not be made unless agreement on the matter in relation to which the consent is sought has been reached between the National Executive Council and the Ombudsman Commission.

(5)	No person is eligible for appointment as Governor-General more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term, but no person is eligible for appointment for a third term."

"88. 	Appointment to Office

(1)	Except in the case of the first Governor-General appointed before Independence Day the Governor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament.

(2)	A decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law.

(3)	Subject to Subsection (5), the Speaker shall, within the period of three months before the completion of the normal term of office of the Governor-General, call a meeting of the Parliament to nominate the next Governor-General.

(4)	Subject to Subsection (5), in the event of a casual vacancy in the office of Governor-General, the Speaker shall, as soon as practicable, call a meeting of the Parliament to nominate the next Governor-General.

(6)	If-

(a)	at a time when a meeting of the Parliament should otherwise be called under Subsection (3) or (4) a general election to the Parliament has been ordered; or

(b)	between the time when a meeting of the Parliament should otherwise be called under Subsection (3) and the date of the completion of the normal term of office of the outgoing Governor-General a general election to the Parliament is due to be held in accordance with this Constitution, the Speaker shall not call a meeting of the Parliament in accordance with Subsection (3) or (4), as the case may be, and a nomination shall be made at the first meeting of the new Parliament as its first item of business after any formal business and the election of a Speaker."

12.	The OLNGG was enacted in accordance with s.88(2) of the Constitution. The relevant provisions are ss. 2, 3, 4, 5, 6, 7, 8 and 9 and which read:

"2. 	The Clerk to conduct elections.

An election under this Law shall be conducted by, or under the supervision of, the Clerk.

3.	Nominations.

Whenever the office of Governor-General is vacant, or is about to become vacant, the Speaker shall—

(a)	on the first sitting day of the Parliament after the vacancy occurs, or the need to elect a new Governor-General occurs, as the case may be, notify the members of the Parliament of the vacancy or of the imminent vacancy; and

(b)	at the same time fix a date, being a date not later than 10 sitting days after the day referred to in paragraph (a), for the conduct of a ballot to decide the person to be nominated by the Parliament to fill the vacant office; and

(c)	call for nominations to fill the vacancy.

4.	Proposals for nomination.

(1)	A proposal for nomination shall be –

(a)	in the form in Schedule 1; and

(b)	contain the signature or other mark of –

ii.	the proposer; and

iii.	the person proposed as accepting the nomination; and

iv.	not less than 15 other members of the Parliament; and

(c)	handed to the Clerk at any time before the commencement of voting.

(2)	A member of the Parliament shall not propose more than one person as a candidate for election as the Parliament's nominee.

5.	Rejection of proposals.

(1)	The Clerk may reject a proposal for nomination where –

(a)	the proposal is not in the prescribed form; or

(b)	the proposal is not signed by at least 15 members of the Parliament; or

(c)	he has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor-General.

(2)	Where the Clerk rejects a proposal for nomination he shall immediately inform the Speaker, the proposer and the person proposed of his reasons for so doing.

(3)	A person aggrieved by a decision of the Clerk may, within five days after the decision, appeal against the decision to the National Court.

(4)	An election under this Law shall not be held until all appeals under this section have been dealt with.

6.	Functions of Clerk prior to ballot.

The Clerk shall, immediately before the commencement of voting –

(a)	furnish the Speaker with a list of all candidates for election and the Speaker shall declare the names to the Parliament; and

(b)	distribute, or cause to be distributed, to each member present in the Parliament at that time a ballot-paper in a form approved by the Clerk.

7.	Voting where one person only proposed.

(1)	Where only one person has been proposed as the Parliament's nominee, each member present shall –

(a)	indicate on his ballot-paper whether or not he agrees with the proposal; and

(b)	deliver the ballot-paper to the Clerk.

(2)	The Clerk shall, as soon as he has received all the ballot-papers, in the presence of the members present, count the votes and furnish the result to the Speaker.

(3)	The Speaker shall –

(a)	where the person proposed has received a majority of votes, declare that person elected as the Parliament's nominee; or

(b)	where the person proposed has received less than a majority, declare that the election has failed, and that person shall not again be proposed as a candidate for election at that election.

8.	Voting where two persons proposed.

(1)	Where two persons have been proposed as the Parliament's nominee, each member present shall – 

(a)	indicate on the ballot-paper the name of the candidate for whom he votes; and

(b)	deliver his ballot-paper to the Clerk.

(2)	The Clerk shall, as soon as he has received all the ballot-papers, in the presence of the members present, count the votes for each candidate and furnish the result to the Speaker.

(3)	The Speaker shall –

(a)	where one of the candidates receives a majority of votes, declare that candidate elected as the Parliament's nominee; or

(b)	where both the candidates receive an equal number of votes, declare that a further ballot shall take place immediately.

(4)	Where on a ballot referred to in Subsection 3(b) there is again an equality of votes, the Speaker shall declare that –

(a)	the matter stands adjourned for one sitting day; and

(b)	that a further ballot shall then take place.

(5)	Where on the ballot referred to in Subsection (4) there is again an equality of votes, the speaker shall cast his vote.

(6)	Where there is an equality of votes, a candidate may at any time after the result of the first ballot is declared, but before the commencement of the second or other subsequent ballot, withdraw his name from the election which shall then proceed in accordance with Section 7.

9.	Voting where more than two persons proposed.

(1)	Where more than two persons have been proposed as the Parliament's nominee, each member present shall –

(a)	indicate on the ballot-paper the name of the candidate for whom he votes; and

(b)	deliver his ballot-paper to the Clerk.

(2)	The clerk shall, as soon as he has received all the ballot-papers, in the presence of the members present, count the votes for each candidate and furnish the result to the Speaker.

(3)	As soon as he has been furnished with the result of the ballot the Speaker shall declare the candidate with the least number of votes to be excluded from further ballots and a second ballot shall be held immediately and so on until there are only two candidates remaining.

(4)	Where only two candidates remain in accordance with Subsection (3) the further ballots shall be conducted in accordance with Section 8 as though those two candidates were the only candidates nominated.

(5)	Where in any ballot conducted under Subsection (3) no decision can be made as to which candidate to exclude from a subsequent ballot because two or more candidates have an equality of votes, a ballot shall be conducted as between those candidates only to determine which should be excluded and, if after conducting that ballot there is still an equality of votes, the Speaker shall cast his vote to determine which of the candidates is to be excluded from subsequent ballots.

(6)	At any time after the result of the first ballot under this section is declared, but before the commencement of the second or other subsequent ballot, a candidate may withdraw his name from the election which shall then proceed as if he had not been nominated."

PART I: IS THE OPPORTUNITY TO STAND FOR NOMINATION TO THE OFFICE OF THE GG A CONSTITUTIONAL RIGHT OR A PRIVILEGE?

13.	By virtue of s 88(1) and (2) of the Constitution only Parliament is vested with the right to nominate a person to the office of the GG. The exercise of Parliament's right is the prerogative of the 109 Members of Parliament (MPs) who comprise the Parliament (see s 101, Constitution). This right is to be exercised by MPs to the exclusion of everyone else. 

14.	The MPs right to nominate a person to the office of the GG is necessarily implied in the nomination process prescribed under the OLNGG. According to s.3 of the OLNGG, the (1) Speaker must first inform the MPs of the need to elect a new GG and (2) then call for nominations from among the MPs. By virtue of s 4 a MP nominates a candidate by completing the prescribed proposal form in the prescribed manner and submitting it to the Clerk of Parliament to accept.

15.	Therefore, the nomination of a person to the office of the GG is an exceptional right;

•	vested only in Parliament; and 
•	the exercise of which is the prerogative of the 109 MPs by virtue of the office they occupy. 

16.	Is the nomination to the office of GG a constitutional right?

17.	Section 50 of the Constitution gives every citizen the right to vote and stand for public office. This right is a qualified right and by virtue of s.38 of the Constitution may be regulated or restricted by other laws made by Parliament. 

18.	According to s.38(2) of the Constitution, any law that purports to regulate or restrict the exercise of a qualified right or freedom must;

(a)	be expressed to be a law that is made for that purpose; and

(b)	specify the right or freedom that it regulates or restricts; and

(c)	be made, and certified by the Speaker in his certificate under s.110 (certification as to making of laws) to have been made, by an absolute majority.

19.	The relevant provisions are s.38(2)(a) and (b). These requirements are mandatory and require strict compliance. Where a law purporting to regulate or restrict a qualified right fails to satisfy these requirements, that law will be declared unconstitutional and therefore invalid as far it restricts that right or freedom. See Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates (2010) SC1057; SCRef No. 11 of 2008 dated 7th July, 2010.

20.	Mr Iduhu for the fourth defendant State submits that the opportunity to stand for nomination to the office of the GG is not a constitutional right.

21.	Mr Iduhu further submits that reading the OLNGG as a whole, as is required by Schedule 1.5 of the Constitution, that it demonstrates that it is not a law intended to regulate the exercise of the opportunity to vote and stand for the office of the GG. Mr Iduhu submits that this is because it fails to comply with the mandatory requirements of s.38 of the Constitution. He submits that the OLNGG does not state that it is a law made to regulate a constitutional right, nor does it state the constitutional right it purports to regulate, if any. 

22.	Mr Iduhu submits that this omission in the law suggests that the activities it regulates are not the expressions of a constitutional right which confirms that the opportunity to stand for this office is a privilege and not a right.

23.	The plaintiff did not make submissions on this issue, focusing only on findings by the Supreme Court in SC 721 Sir Albert Kipalan & Ombudsman Commission and another v. The National Parliament and Others (Unreported Judgment of the Supreme Court dated 21st November, 2003). The other decision, plaintiff's counsel relies on is Re Election of Governor-General (No.2) (2004) SC 728. Plaintiff's counsel emphasised throughout that the findings by the Supreme Court in SC 728 and SC 721 sets the threshold on the responsibilities of the Clerk and Speaker of Parliament. In SC 721, the late Kapi CJ, Injia DCJ (then), the late Hincliffe .J, Salika .J (then) and Sakora .J said at pg.38;

"Under the Organic Law, the Clerk of the Parliament plays an important role in the election of the Governor-General. The Office of the Clerk is established by Constitutional law and be is a Constitutional office-holder: see Constitution s.26(1)(a), s.221(f), S.224.

It can be appreciated that the constitutional office of the Clerk of the National Parliament is a very serious, important and onerous one. An in respect, specifically to his duties and responsibilities pertaining to the nomination by the Parliament of its candidate for appointment as Governor-General, the Organic Law is of crucial importance. He is the official vested with the power and responsibility to conduct and supervise the election for which procedures and processes are specifically enacted (s.2 Organic Law). He must take his duties and functions under the Constitution and the Organic Law seriously and discharge his duties, responsibly and independently, in accordance with Constitutional Law.

Under the Organic Law, the Clerk has the primary responsibility for the conduct or supervision of election of the Parliament's nominee for appointment of the Governor-General (s.2). The words "conducted" and "supervision" entails all steps necessary for the process of election from the beginning to the final result of the election. Section 7 of the Organic Law expressly enumerates some of these responsibilities. This responsibility includes the duty to ensure that the integrity of the process of the election is safeguarded. This means without that where the Clerk fails to discharge his duties under the Organic Law, no valid nomination as Governor-General can be made. This also means that he has a duty to ensure that there is reconciliation of the ballot papers with number of members present at the time the ballot is conducted. For instance, if the number of ballot papers exceeds the number of members on the floor of the Parliament, the integrity of the election would be called into question.

The Organic Law, s.5 gives the Clerk discretion to reject any proposal for nomination where (a) the proposal is not in the prescribed form or (b) the proposal is not signed by at least 15 member of the Parliament or (c) he has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor-General. The third consideration is not relevant in the case before us. The first two considerations arise for consideration. We turn now to consider them under s.4 of the Organic Law."
(my emphasis)

24.	As to the requirement of the Proposal Form and how it is administered by the Clerk of Parliament, the Supreme Court outlined the importance of the Proposal Form at pg.40 as follows;

"The importance of the Proposal Form prescribed in Schedule 1 cannot be understated. This Form is not like other forms prescribed by statutes and regulations. The form contains the matters contained in s.4(1)(b) and additional relevant matters to be filled in. The Proposal Form is prescribed by the Organic Law and all the requirements of this form must be complied with strictly. Indeed this form plays a vital role in the election procedure. The information in the form provides the evidence or material upon which the Clerk discharges his duties under s.5(1) and s.6. The form makes provision for some of the key players in the election process to complete including the proposer, acceptance of the proposal by the proposed candidate and the support of the proposed candidates by a fixed number of members in the Parliament. From this form, the Clerk compiles a list of candidates and submits to the Speaker for voting by Parliament. The rejection of this Proposal Form by the Clerk gives an aggrieved person the right of appeal to the National Court, pending the determination of which the whole election process is put on hold. Without this form, no list of candidates is placed before the Speaker and no election of the Governor-General takes place. It is therefore the duty of the Clerk to ensure that the Proposal Form handed to him under s.4(1) strictly conforms to Schedule 1. In our opinion, whatever the Schedule provides it is mandatory and shall be complied with. 

This interpretation comes from s.4(1)(a) of the Organic Law. We do not accept the alternative proposition that s.4(1)(a) is directory only and that s.4(1)(b) is mandatory. This view is supported by s.5(1)(a) and (b). That is that if these requirements are not complied with, a Proposal Form may be rejected by the Clerk. This confirms that the requirements in s.4(1)(a) and (b) are expressed in mandatory terms."
(my emphasis)

25.	Again, in relation to the Clerk's duties, the Supreme Court in SC 728 said at pg.14;

"It is therefore the duty of the Clerk to ensure that the Proposal Form handed to him under s.4(1)(a) strictly conforms to Schedule 1."

26.	The Supreme Court in SC 728 said further at pg.18;

"…the Clerk fell into error in failing to reject the Fourth Defendant's Proposal Form for stating the wrong date on the second occasion."

27.	Similarly, the Supreme Court unanimously found that the Speaker did not perform his duties when it held;

"We consider that the Second Defendant ought to have cast his vote at this point to resolve the equality of votes as between Sir Paulias Matane and the Fourth Defendant. In not doing so, he failed to comply with s.9(5) of the Organic Law."

28.	Should these findings in themselves demonstrate that the Clerk or Speaker of Parliament, can be sued in their official capacities, for negligence?

29.	The defendants submit that the Speaker of Parliament and the Clerk of Parliament do not owe a duty to the plaintiff. We discuss this further below. However, in relation to the first issue, Mr Iduhu for the defendants submits that upon a finding that the appointment to the office of the Governor-General is a privilege and not a right, that the issue of damages does not arise. The Supreme Court's findings outlined above, although are findings that are suggestive of a finding on liability, must be borne in mind that these are comments made by a bench confronted by the issues before it at that time. This Court when considering these comments, should not draw conclusions based on findings made after consideration of issues, separate to the issues now confronting me. But, in my view, the appropriate time to consider the aspect of liability is when I discuss the other issues set out hereunder.

30.	In maintaining this view I note that in Review Pursuant to Constitution; In the Matter of the Organic Law on the Nomination of Governor-General (2004) SC752, the Supreme Court in obiter referred to submissions from counsel for the Applicant in relation to proceedings regarding the potential breach of the so-called democratic right of the applicant. In that particular case the applicant, relying on the Slip Rule, applied to the Supreme Court to review its decision in SC 728 claiming a misapprehension of the law by the Supreme Court. It should be noted that the Applicant in SC 752 is the plaintiff in the current proceedings. The application in SC 752 arose from the Supreme Court's findings in SC 728. However, in SC 752, in response to the Applicant's submissions that his "democratic rights" would be breached if the court did not reverse its decision in SC 728 the Supreme Court said at pgs.22 and 23;

"The fact is that the Applicant exercised his right to be nominated as the Parliament's nominee as Governor-General in the first nomination as well as in the second nomination by the Parliament. He has fully exercised his democratic right."

31.	In that case, reference to the "first election" by the Supreme Court was reference to the election conducted on 4th December, 2003 in which the Plaintiff was elected as Parliament's nominee. The "second election" referred to by the Supreme Court was the election on 27th May, 2004 in which the Plaintiff was a candidate but lost.

32.	It is my view that the Supreme Court, when referring to the Applicant's democratic right in SC 752, was not referring to those rights under s 50 of the Constitution. What the Supreme Court was in fact referring to was the Applicant's freedom to choose. This fundamental democratic right was exercised by the Applicant when he freely chose to accept nomination for the first and second election. In fact, the Supreme Court found the plaintiff's 2 attempts at "voiding" the election process, both filed in the Supreme Court, SC 752 more particularly, was found to be an abuse of the process of the Court. The plaintiff's counsel in SC 752 had urged the Supreme Court to correct a misapprehension of law and facts because if it did not do so, it would affect his democratic rights and result in injustice to him. In response to that, the Supreme Court made the finding referred to at pg.22 and 23, the quotation set out at par. no. 31 above.

33.	The Supreme Court in SC 752 held further that the plaintiff proceeded on the assumption that the Supreme Court's decision was correct and allowed Parliament to make a new nomination. The Supreme Court found that the plaintiff not only allowed the process to take place, but participated in the process. That had the plaintiff been nominated, that he would not have had any complaints. The Supreme Court found that "the fact that he did not win the nomination cannot result in injustice." (pg.23)

34.	Therefore, the opportunity to stand for nomination to the office of the Governor General is not a constitutional right. It is a privilege vested in Parliament that is extended to whoever satisfies the qualifications set out under s 87 of the Constitution. It means therefore that nomination of a person to the office of the GG is a privilege and not a right.

35.	Having answered that issue, the other issues are;

(i)	Whether the Clerk and the Speaker of Parliament have a constitutional duty to the Plaintiff to ensure that the proposal, nomination and the eventual appointment as the Governor General was conducted in accordance with the procedures prescribed by the OLNGG?

(ii)	Whether the Clerk and the Speaker of Parliament have breached their Constitutional duties (if any) to properly ensure that the Plaintiff's proposal, nomination and the eventual appointment as the GG was conducted in accordance with the procedures prescribed by the OLNGG?

36.	From these 2 main issues, several pertinent related issues arise as to whether the then Clerk of Parliament, Mr Ano Pala;

(a)	was negligent or reckless in advising the Plaintiff to fill in the date on the proposal form at first instance when he ought to have only advised the Plaintiff that he was rejecting the proposal form because it was undated;

(b)	was negligent when he failed to advise the Plaintiff to fill a new proposal form or even provide a new form for the Plaintiff to complete it afresh;

(c)	Was reckless in not giving clear advice to the Plaintiff that he would not accept the form without the date being stated on the proposal form;

(d)	Was negligent or reckless in accepting the amended proposal form from the Plaintiff in the second instance and ought to have rejected the amended proposal form and advised the Plaintiff to fill a new form and re-submit it;

(e)	had a duty of care under the OLNGG to advise the Speaker of Parliament to cast his vote for purposes of resolving an equality of votes when there is an equality of votes on the second ballot between two candidates;

(f)	Was negligent during the nomination process when there was an equality of votes between the Plaintiff and Sir Paulias Matane (30 votes each) when he failed to advise the Speaker to cast his vote at that point to resolve the equality of votes and thereby breaching Section 9(5) of the OLNGG.

37.	I discuss these issues under Part II, being 'Duties of the Speaker and the Clerk under the OLNGG'.

PART II - DUTIES OF THE CLERK AND SPEAKER UNDER THE OLNGG

38.	I now address the above issues under the following sub-headings or sub-parts which are;

(i)	Whether the Clerk and Speaker owe a constitutional duty of care to nominees for the office of the GG; and 

(ii)	Subject to the answer to (1), whether at all material times, the Clerk and Speaker, by their acts or omissions, breached this duty; and

(iii)	Also subject to the answer to (1), whether the breach of this duty gives rise to a claim for damages. 

Sub-Part (i) - Whether the Clerk and Speaker owe a constitutional duty of care to nominees for the office of the GG

39.	Mr Iduhu submits that the Clerk and the Speaker of Parliament do not owe a constitutional duty of care to nominees for the office of the GG. He expands on this submission below.

40.	Mr Iduhu submits that the OLNGG and s.88 of the Constitution demonstrate that there are three (3) groups of people involved in appointing Parliament's nominee for the office of the GG. They are:

•	The Parliament which comprises the Speaker of Parliament and the other MPs;
•	The Clerk of Parliament; and 
•	The person proposed. 

41.	Section 88 of the Constitution and the provisions of the OLNGG enumerate roles and responsibilities of each group in the nomination process. These roles and responsibilities determine the rights and correlating duties that arise from the exercise of those rights. I discuss this below.

42.	Parliament's roles and responsibilities: By virtue of s.88(1) of the Constitution and s.3 of the OLNGG, the responsibility to nominate a person to the office of the GG is vested in Parliament which comprises the Speaker and the other MPs: see ss.101 and 107(1) of the Constitution.

43.	In accordance with s.3 of the OLNGG when a vacancy in the office of the GG arises, it is the Speaker's responsibility to inform Parliament of the vacancy, call for nominations for a new GG from among the other MPs and set a date for Parliament to elect its nominee. By virtue of s.108(1) of the Constitution and as part of his general duties, the Speaker is also responsible for regulating the parliamentary proceedings when Parliament convenes to elect its nominee. The Speaker also has, by virtue of ss.8(5) and 9(5), the casting vote where two candidates secure the same number of votes in those circumstances envisaged by ss.8 and 9 of the OLNGG.

44.	The responsibilities of the other MPs are provided for under ss.4, 7, 8 and 9 of the OLNGG. The provisions of s.4 impose on an MP the responsibility to propose candidates for election as Parliament's nominee for the office of the GG. The MP's proposal must be made through a specific form and must contain the: 

•	proposer's signature; 
•	signature of the person the MP proposes; and
•	signature of not less than 15 other MPs endorsing the proposing MPs candidate. 

45.	Further and although not mandatory, every MP, by necessary implication, also has the responsibility to be present and vote on the day appointed for Parliament to elect its nominee.

46.	The Clerk of Parliament's responsibilities: By virtue of s.2 of the OLNGG the Clerk is responsible for the overall "conduct and supervision" of the nomination process. Following the Supreme Court's ruling in Review Pursuant to Constitution; In the Matter of the Organic Law on the Nomination of Governor-General (2004) SC752, the Clerk is responsible for supervising the conduct of the nomination process from the beginning to the final result of the election. These responsibilities include: 

•	Accepting and scrutinising proposal forms;

•	furnishing to the Speaker the complete list of the names of all the accepted candidates immediately prior to the commencement of voting for the Speaker to announce to Parliament prior to the commencement of voting in accordance and in the manner prescribed by ss.6, 7, 8 and 9 of the OLNGG; and

•	distributing ballot papers on voting day and reconciling the ballot papers with the numbers of MPs present during voting.

47.	The OLNGG also gives the Clerk the discretion to reject an MP's proposal where;

(a) The proposal is not in the prescribed form; or

(b) The proposal is not signed by at least 15 members of the Parliament; or

(c) He has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor-General. 

48.	The responsibilities of the person proposed: It is not disputed that throughout the entire process the person nominated is a mere spectator. The only affirmative act he or she is required to do is to accept or decline an MP's proposal to nominate him or her as a candidate for election as Parliament's nominee. In the event he or she accepts, he or she is required to endorse his or her signature and the date he or she signs on the prescribed form. He or she is not required under law to do anything further. 

49.	By ordinary implication the responsibilities of the above three categories of persons is the equivalent of their rights. Accordingly, the fulfilment of these responsibilities would be the equivalent of the exercise of these rights which would give rise to correlating duties. 

50.	Duties of the Speaker: The office of the GG is a very distinguished office. By virtue of s.84 of the Constitution, it is the second highest office in the land, after the Head of State. The right to nominate a person to this very high office is vested only in Parliament as the depository of the people's legislative power: s.100 (1) of the Constitution. 

51.	By virtue of s.108(1) of the Constitution, the Speaker is responsible for regulating the proceedings of Parliament. This includes those proceedings during which Parliament exercises its right to elect its nominee for the office of the GG. In such proceedings the Speaker is required to strictly comply with those instructions imposed on him by virtue of s.88 of the Constitution and the OLNGG. The Speaker therefore owes a duty to Parliament to ensure that those instructions are strictly adhered to. 

52.	Duties of the Clerk: Because the law entrusts the Clerk with the responsibility of conducting and supervising the entire nomination and election process (s.2 of OLNGG), the law, by ordinary implication, creates a correlating duty in the Clerk to Parliament to ensure that the conduct and supervision of the process for nomination complies with the strict process prescribed by law. 

53.	Interests of the person proposed: In as far as the person proposed is concerned, his only interest is in the outcome of the process of nomination. This interest is not founded on any right and therefore does not attract any correlating duty. This interest only entitles the person proposed to ensure that the process for nomination prescribed under law is strictly complied with and nothing more. See Ombudsman Commission v. National Parliament (2003) SC 721. 

54.	Therefore, in answer to the question whether the Clerk and/or Speaker owe(s) a duty of care to nominees for the office of the GG and in this case, to the plaintiff, I hold the view that the Clerk and the Speaker do not.

55.	Whether at all material times, the Clerk and Speaker, by their acts or omissions, did breach their duty: In my view, because the Clerk and Speaker do not owe a duty of care to a nominee for the office of the GG the question of a breach naturally does not arise.

56.	Whether the breach of this duty gives rise to a claim for damages: Additionally, because the Clerk and Speaker do not owe a duty of care to a nominee for the office of the GG the question of damages arising from the breach of a duty of care naturally does not arise.

57.	The alternative submission made by Mr Iduhu is that where the Clerk and Speaker do owe a duty of care to nominees for the office of the GG, that it is a breach of a statutory duty, the breach of which is not enforceable by a claim for damages. I agree with Mr Iduhu that breaches of the statutory duties of the Speaker and Clerk under the OLNGG can only be remedied by a declaratory order sought under: 

•	Section 5(3) of the OLNGG, where the breach is in relation to the exercise of the Clerk's discretion to reject a proposal; or 

•	Sections 18(1) and 155(4) of the Constitution where the alleged breach is as a result of a failure by the Speaker or Clerk to comply in any way with the mandatory legal procedure prescribed under the OLNGG for the election of Parliament's nominee for the office of the GG.

•	Where the breach is as a result of the Speaker or Clerk's failure to comply with duties under the OLNGG, I find that the only other remedy for the Plaintiff and any other interested person is a referral of the Clerk and/or Speaker to the Ombudsman Commission under Part III Division 2 of the Constitution for possible misconduct in office. This is because the Speaker is an MP and the Clerk is a constitutional office holder by virtue of s.221 of the Constitution. Accordingly, they are both subject to the Leadership Code by virtue of s.26 (1)(c) and (e) of the Constitution.

58.	The Common Law supports this proposition which I adopt. I do this by referring to and relying on Clegg, Parkinson & Co v Earby Gas Co [1896] 1 QB 592, an action brought against a gas company for breach of their duty under the Gasworks Clauses Act 1871 to supply gas sufficient in amount and in purity to satisfy the requirements of the Act, the breach of which was enforced by a penalty. It was held on appeal that the only remedy for a consumer was to seek the penalty. The general rule of law as discussed by Wright .J is that the obligation of the company (the respondent) if any, depends upon statute, not upon contract. Where a general obligation is provided, that the statutory remedy is the only remedy (my emphasis). (See also Doe v. Bridges 1 B & A d. 847, 859; Stevens v. Jaeacocke 11 Q.B 731). In this case, I find that it was never Parliament's intention to allow parties who were aggrieved by a failure of the Speaker or Clerk in the observation of their statutory duties under the OLNGG, to institute claims for damages. If it was Parliament's intention, it would have expressly provided for this remedy. Instead Parliament only made provision for aggrieved parties to institute proceedings for orders of a declaratory nature or to appeal. This is an obvious expression of Parliament's intention not to allow claims such as the present.

59.	As was held by the Supreme Court in Ombudsman Commission v National Parliament (2003) SC 721, the office of the GG is a very high and distinguished constitutional office. Therefore, it is essential that the integrity of the office and the process of nominating the GG is adhered to at all times so as to maintain and retain the people's confidence in the office. One way, this is achieved is through proceedings under s.5(3) of the OLNGG (appeal) and/or s.18(1) of the Constitution for declaratory relief. The plaintiff defended such an action, for declaratory relief under s.18(1) of the Constitution, proceedings SC 728 and thereafter, the plaintiff pursued his application under the Slip Rule, SC 752.

60.	It is my view, that if the Courts were to allow claims for damages to be entertained where there are allegations of a breach by the Speaker or Clerk of their statutory duties as prescribed under the OLNGG, more particularly when no such relief is provided for under the OLNGG, that it will open the door and the flood gates to many claims, some of which may be spurious and which ultimately will have the effect of tarnishing the integrity of the office of the GG and diminishing the respect that should be accorded to that office.

61.	Accordingly, it is my view that the breach of the Clerk or Speaker's duty should not give rise to a claim for damages but must be an action as prescribed by statute, in this case, s.5(3) of the OLNGG and s.18(1) of the Constitution, which has already been done, i.e the latter suggestion.

Conclusion

62.	Therefore, I will answer the issues posed earlier as follows;

(i)	Does the Clerk and the Speaker of Parliament have a Constitutional duty to the plaintiff to ensure that the proposal, nomination and the eventual appointment as the GG was conducted in accordance with the procedures prescribed by the OLNGG?

Answer: No.

(ii)	Did the Clerk and the Speaker of Parliament breach their Constitutional duties (if any) to properly ensure that the plaintiff's proposal, nomination and eventual appointment as the GG was conducted in accordance with the procedures prescribed by the OLNGG?

Answer: No.

(iii)	Was the Clerk of Parliament negligent or careless when he advised the plaintiff to state the date on the Proposal Form at first instance when he ought to have advised the plaintiff that he was rejecting the Proposal Form because it was undated?

Answer: No.

(iv)	Was the Clerk of Parliament negligent when he did not advise the plaintiff to fill a new proposal form or provide a new form to the plaintiff to complete?

Answer: No.

(v)	Was the Clerk of Parliament reckless when he did not give clear advice to the plaintiff that he would not accept the form without the date on the Proposal Form?

Answer: No.

(vi)	Was the Clerk of Parliament negligent or reckless when he accepted the amended Proposal Form from the plaintiff the second time when he ought to have rejected the amended Proposal Form and advised the plaintiff to complete and submit a new form?

Answer: No.

(vii)	Does the Clerk of Parliament owe a duty of care to the Speaker of Parliament to ensure to advise the Speaker to cast his vote for purposes of resolving an equality of votes when there is an equality of votes on the second ballot between two (2) candidates?

Answer: Yes. But this duty is owed to Parliament and not to the plaintiff.

(viii)	Was the Clerk of Parliament negligent during the nomination process when there was an equality of votes between the plaintiff and Sir Paulias Matane (30 votes each) when he did not advise the Speaker to cast his vote at that point to resolve the equality of votes, thereby breaching s.9(5) of the OLNGG?

Answer: Yes. Also, the plaintiff sought a remedy in the matter Re Election of Governor-General (No.2) (2004) SC 728.

63.	Therefore, consistent with the above findings, the defendants are not liable in negligence. 

64.	Upon my findings above, I find that there is no basis for the plaintiff's claim in damages. I also need not consider the plaintiff's other submissions on the Constitutional duty of care under custom and the Underlying Law because of this Court's findings that the Clerk and the Speaker of Parliament do not owe a duty of care to the plaintiff.

Formal Orders

4.	These are the formal orders of the Court; 

(1)	The plaintiff's claim is dismissed in its entirety;

(2)	The plaintiff shall pay all defendants' costs of the proceedings, to be taxed if not agreed.

_____________________________

Greg Manda Lawyers: Lawyers for the plaintiff
Kelly Naru Lawyers: Lawyers for the First, Second and Third Defendants	
Fairfax Legal: Lawyers for the Fourth Defendant