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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[ IN THE NATIONAL COURT OF JUSTICE]
OS NO. 762 OF 2014
BETWEEN:
HON. BIRE KIMISOPA, MP
MEMBER FOR GOROKA & CHAIRMAN OF THE GOROKA JOINT DISTRICT PLANNING & BUDGET PRIORITIES COMMITTEE
Plaintiff
AND:
HON. JULIE SOSO AKEKE, MP
GOVERNOR OF EASTERN HIGHLANDS PROVINCE & CHAIRLADY OF EASTERN HIGHLANDS JOINT PROVINCIAL PLANNING & BUDGET PRIORITIES COMMITTEE
First Defendant
AND:
MR. BILL KAVANAMUR, THE PROVINCIAL ADMINISTRATOR, EASTERN HIGHLANDS PROVINCE
Second Defendant
AND:
MR. PAUL MAKESO, THE TREASURER, EASTERN HIGHLANDS PROVINCIAL TREASURY, EASTERN HIGHLANDS PROVINCE
Third Defendant
AND:
HON. CHARLES ABEL, MP AS MINISTER FOR NATIONAL PLANNING & MONITORING
Fourth Defendant
AND:
MR. ROMELY KILAPAT IN HIS CAPACITY AS THE SECRETARY FOR DEPARTMENT OF PHYSICAL PLANNING AND MONITORING
Fifth Defendant
AND:
DAIRI VELE IN HIS CAPACITY AS SECRETARY FOR DEPARTMENT OF TREASURY
Sixth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant
Goroka: Yagi J
2015: 4th November
2016: 09th February
PRACTICE AND PROCEDURE – representative action – National Court Rules, Order 6 Rule 13 – Chairman of the Joint District Planning & Budget Priorities Committee commencing proceedings – whether Chairman has authority and written instructions to act on behalf of the Committee.
Cases cited:
Simon Mali v The Independent State of Papua New Guinea (2002) SC690
Tigam Malewo v Keith Faulkner (2009) SC960
Joe Maiva & Others v Ila Mari & Others (2012) N4696
Counsel:
D. Mewerimbe, for the Plaintiff
R. Kot, for First, Second & Third Defendants
No appearance by the Sixth Defendant
W. Agusave, for the Fourth, Fifth & Seventh Defendants
DECISION
09th February, 2016
1. YAGI, J: The dispute in this proceeding relates to funds that were released by the National Government through its implementing agencies to the Eastern Highlands Provincial Treasury earmarked for the Goroka Market Redevelopment project (Project). It is essentially a dispute between the Member for Goroka as the Chairman of the JDP & BPC in the Goroka District and the Governor of the Eastern Highlands Province.
2. The total amount of money which constitute the “funds”, the subject of the dispute in this proceedings is K12 million. The funds are currently the subject of a restraining order made on 17 November 2014 and subsequently varied by consent of the parties on 23 April 2015. The funds are parked in a Trust Account, which is an account created specifically for the Project pursuant to a Trust Instrument issued by the Minister for Finance.
3. Central to the dispute is the issue of rights over the funds. It concerns the right to control and manage the funds provided by the national government for the Project. This Project is considered an impact project for the Province. There is strong public interest over this project in so far it affects the ordinary people who continue to use a badly rundown facility as opposed to a modern convenient facility. Unfortunately, the current litigation has stalled the progress of the Project. The plaintiff says the right to control and manage the funds belongs to the Goroka JDP & BPC whilst the Governor says it rightfully belongs to the Provincial body, the Eastern Highlands Joint Provincial Planning & Budget Priorities Committee (EHJPP & BPC). So when one looks closely at the dispute it is in fact a tussle between two political leaders and the political group they head in the Province over public funds.
4. The plaintiff is the Member for Goroka Open Electorate. His political mandate and responsibility is within the Goroka District or Electorate. This is his political boundary. He is the Chairman of the Goroka Joint District Planning and Budget Priorities Committee (GJDP & BPC).
5. The first defendant is the Governor of the Eastern Highlands Province (Governor) who is also the Chairlady of the Eastern Highlands Joint Provincial Planning and Budget Priorities Committee (EHPP & BPC). Her political mandate, responsibility and boundary cover the length and breadth of the entire Eastern Highlands Province including the Goroka District.
6. The Project is located within the township of Goroka and within the District which the plaintiff has political responsibility. At the same time the first defendant also has political responsibility over because of her overall political status and mandate.
Reliefs Sought
7. The plaintiff seeks the following reliefs:
“(i) A DECLARATION THAT the sum of K2 million approved in the 2013 National Budget and released by the Finance Department to the Eastern Highlands Treasury by authority of Warrant No. 0004183 is for the Goroka Market Redevelopment Project identified by the Goroka Joint District Planning and Budget Priorities Committee for the Goroka Open Electorate only (“the intended purpose”) and none other.
(ii) A DECLARATION THAT a sum of K10 million approved in the 2014 National Budget for the Goroka Market Redevelopment Project identified by the Goroka Joint District Planning and Budget Priorities Committee for the Goroka Electorate is due and owing to the Goroka District Treasury Account, to be managed by the Goroka Joint District Planning and Budget Priorities Committee only (“the intended purpose”) and no other.
(iii) A DECLARATION THAT the total sum of K12 million approved in 2013 and 2014 National Budget for the Goroka Market Redevelopment Project identified by the Goroka Joint District Planning and Budget priorities Committee for the Goroka Electorate is due and owing to the Goroka District Treasury Account, to be managed by the Goroka Joint District Planning and Budget Priorities Committee only (“for the intended purpose”) and none other.
(iv) AN ORDER THAT the sum of K2 million in the custody of the First, Second and Third Defendants by warrant No. 0004183 dated 23rd April 2013 be paid to Goroka District Treasury Account to be used for the intended purpose of Re-developing the Goroka Town Market and to be managed by the Goroka Joint District Planning and Budget Priorities Committee and none other.
(v) AN ORDER THAT the sum of K10 million approved in the 2014 National Budget for the Goroka Market Redevelopment Project identified by the Goroka Joint District Planning and Budget Priorities Committee for the Goroka Open Electorate be identified by the Defendants and be paid to the Goroka District Treasury Account, to be managed by the Goroka Joint District Planning and Budget Priorities Committee only (“the intended purpose”) and none other.
(vi) AN ORDER THAT the Fourth, Fifth and Sixth Defendants shall forthwith identify funds and pay to the Goroka District Treasury Account the sum of K12 million being funds lawfully appropriated in 2013 and 2014 National Budget for the Re-development of Goroka Town Market in the Goroka Open Electorate, project identified by the Goroka Joint District Planning and Budget Priorities Committee.
(vii) AN ORDER THAT upon receipt of the payment of K12 million into the Goroka District Treasury Account, the funds can be dispersed for the intended purposes only in consultation with the Fourth Defendant through a Memorandum of Understanding that shall be executed forthwith with the Plaintiff on behalf of the Goroka Joint District Planning and Budget Priorities Committee and the Fourth, Fifth and Sixth Defendants for purposes of facilitating the management and disbursement of the funds.
(viii) AN ORDER restraining the Defendants jointly or individually from dealing with the K12 million the subject of this proceeding, in any manner whatsoever, except for the intended purpose of Re-developing Goroka Town Market and to be managed by the Goroka Joint District Planning and Budget Priorities Committee and none other.
(vix) AN ORDER that the First Defendant, Honourable Madam Governor Julie Soso and the Eastern Highlands Provincial Government- Provincial Executive Council be restrained from making public statements regarding the Goroka Town Market Re-development Project, in so far the involvement of Goroka Joint District Planning and Budget Priorities Committee’s implementation of the project.
(x) AN ORDER that the First Defendant, Honourable Madam Governor Julie Soso and the Eastern Highlands Provincial Executive Council be restrained from interfering with the Tender process of the Goroka Town Market Redevelopment Project, in so far the involvement of Goroka Joint District Planning and Budget Priorities Committee’s implementation of the project.
(xi) AN ORDER that the Defendants shall pay the Plaintiff’s cost of this proceeding.
(xii) Such further other Orders this Court deems fit.”
Affidavit Evidence
8. The parties have filed a number of affidavits in the proceedings. For the plaintiff the following affidavits have been relied upon in the substantive hearing:
1. Affidavit of Hon. Bire Kimisopa sworn on 28 October 2014
2. Affidavit of Hon. Bire Kimisopa sworn on 12 November 2014
3. Affidavit of Hon. Bire Kimisopa sworn on 27 February 2015
9. As for the Governor, it is unclear which particular affidavits were relied upon as this was not made clear by counsel during the hearing. The second and third defendants support the position of the Governor. It is, however, noted that the following affidavits were filed in the proceedings:
1. Affidavit In Reply of Julie Soso Akeke sworn on 7 November 2014
2. Affidavit of Paul Makeso sworn on 11 November 2014
3. Affidavit of Alvin Inamoi sworn on 10 November 2014
4. Further Affidavit of Alvin Inamoi sworn on 13 November 2014
5. Affidavit In Support of Julie Soso Akeke sworn on 8 December 2014
6. Supplementary Affidavit of Paul Makeso sworn on 30 March 2015
7. Affidavit In Reply of Julie Soso Akeke sworn on 30 October 2015
10. With regards to the fourth, fifth, sixth and seventh defendants, they relied upon the following affidavits:
1. Affidavit In Support of Ms. Hakaua Harry sworn on 21 April 2015
2. Affidavit of Dairi Vele sworn on 20 October 2015
11. The parties have filed written submissions and made oral submission during the hearing complimenting the written submissions. I have considered the submissions and will summarise them shortly in the course of my deliberation.
Undisputed Facts
12. The undisputed materials facts are these:
(i) In April 2013, the National Government through the Department of National Planning and Monitoring (DoNPM) and Department of Treasury (DoT) released an amount of K2 million for the purpose of the Project. This was facilitated through Warrant No. 00004183 dated 23 April 2013.
(ii) In August 2014, a further amount of K10 million was released by the National Government through the same implementing agencies for the purpose of the Project through Warrant No. 00100028 dated 6 August 2014.
(iii) Both amounts released totalling K12 million were remitted to Eastern Highlands Provincial Government and held in the Provincial Treasury Account.
(iv) A Trust Account under the name “Goroka Market Development Trust Account” was established pursuant to a Trust Instrument dated 8 December 2013 issued by the Minister for Finance in accordance with powers conferred on him under the provisions of the Public Finance Management Act 1995 (PFMA). The account is maintained at the Goroka Branch of the Bank South Pacific Limited. The account number is 101 3588718.
(v) The K12 million released by the National Government for the Project has been transferred from the Provincial Treasury Account to the Trust Account. The Eastern Highlands Provincial Government has also transferred funds to additional amount of K10 million into the Trust Account as counterpart funds towards the Project.
(vi) A Committee has been established to oversee the implementation of the Project. The Governor is the Chairperson and the plaintiff is the Deputy Chairman of the Committee.
(vii) The Project is an impact project for the Eastern Highlands Province and the country as a whole and has the support of the National Government.
(viii) The current state of the Goroka Town Market infrastructure and facility is almost in a complete rundown state and therefore there is urgency in redeveloping the facility in the general public interest.
Submission by the Plaintiff
13. The submissions by the plaintiff are essentially that he is the Chairman of the Goroka Joint District Planning and Budget Priorities Committee (now replaced by Goroka District Development Authority). As Chairman of the Committee, his powers and functions are provided under s. 33A of the Organic Law. The powers, amongst others, include the power to determine and control the funds allocated for the Project. It is submitted the funds allocated for the Project were released by the DoNPM after submissions were made by the Goroka Joint District Planning and Budget Priorities Committee who is the proponent of the Project and therefore the plaintiff has the right to control and manage the funds.
14. It is further submitted by virtue of s. 70 of the PFMA, the third defendant (Provincial Treasurer) is legally obliged to facilitate the release of the funds from the Provincial Treasury Account to the Goroka District Treasury Account. Furthermore, counsel submits, s. 29 of the PFMA provides for Warrants to be issued against funds specifically earmarked for the purpose for which the funds are released and therefore in this case, it is argued, the evidence of paper trails support the plaintiff’s contention that the K12 million allocated was intended for the Project based on submission by the GJDP & BPC.
15. Finally, it is submitted on behalf of the plaintiff, that the Court should be guided by the purpose and intent of the PFMA which is that public money must only be applied for the intended purpose by the rightful body. In this case, it is submitted, the evidence points to Goroka District Administration and Gahuku Local-level Government as the Project proponents and therefore the plaintiff should be granted the reliefs sought.
Submission by the first, second and third defendants
16. The submission by the first, second and third defendants are the same and in two parts. The first part relates to procedural issues and the second concerns the substantive merit of the dispute in the proceedings.
17. As regards the procedural issue they raise two points; firstly, it is contended that the plaintiff lacked the legal capacity to sue because he is not a recognised legal authority under s. 33A of the Organic Law. They argue that by virtue of s. 4(1) of the District Authority Act 2014 (DDA Act) the proper authority is the District Development Authority. Moreover, they submit, the plaintiff is suing in a representative capacity and hence this is a class action in that the plaintiff as the Chairman of the Board is bringing this action on behalf of the Board which includes the Presidents of the Local-level Government in the District as well as others. In this case, they argue, there is no evidence of these other plaintiffs consenting to or authorising the plaintiff to bring this action on their behalf. In support of the arguments they rely on Order 5 Rule 13 of the National Court Rules and the case law authorities in Simon Mali v The Independent State of Papua New Guinea (2002) SC690; Tigam Malewo v Keith Faulkner (2009) SC960 and Joe Maiva & Others v Ila Mari & Others (2012) N4696.
18. In respect to the second procedural issue, these defendants submit the Court lacked jurisdiction on the basis that the plaintiffs have not pleaded the legal basis on which the reliefs (declarations and orders) are being sought in the proceedings.
19. With regards to the substantive dispute, it is submitted, the issue is whether the National Government appropriated the K12 million as Public Investment Program (PIP) funds upon the proposal by the Goroka District or the Eastern Highlands Provincial Government. In this case, they concede that K2 million released in 2013 was based on a submission by the Goroka District, however, the K10 million appropriated in 2014 was based on a proposal by the Eastern Highlands Provincial Government. They therefore submit that the K10 million appropriation by the National Government is for the Eastern Highlands Provincial Government for the purpose of the Project.
Submission by the fourth, fifth and seventh defendants
20. The fourth, fifth and seventh defendants submit that the K12 million is for the Project and based on a submission by the GJDP & BPC (now the Goroka District Development Authority). They rely entirely on the evidence deposed to by Hakaua Harry in her affidavit sworn on 21 April 2015.
Submission by the sixth defendant
21. The sixth defendant made no appearance and therefore did not make any submission at the hearing.
Reasons for Decision
22. The issues raised for consideration are both procedural and substantive. It is conventional practice that the procedural issues should be addressed at the outset. I will therefore proceed along this basis by first considering the procedural issues raised by the first, second and third defendants.
23. It is submitted by the defendants that the plaintiff lacked the legal capacity to sue because the claims he makes and hence the action he brings before the Court is made on behalf of the other interested plaintiffs or parties, which, amongst others include, the members of the GJDP & BPC (now the Goroka District Development Authority) and the Presidents of the Local-level Governments in the Goroka District. In that respect, it is submitted, they must give specific written authority to the plaintiff to commence the proceeding and these plaintiffs must be named and identified in the originating process. In this case, these defendants submit the other intended plaintiffs have not been identified and named in the proceedings and moreover there is no evidence by the plaintiff that these other plaintiffs have given him specific instructions to bring these proceedings. Reference is made to Order 5 Rule 13 of the National Court Rules and the cases cited earlier.
24. In response, counsel for the plaintiff concedes that there is no specific authority, however, submits that there is ample authority which can be inferred from the resolution of the GJDP & BPC meeting on 21 June 2013.
25. Order 5 Rule 13 states as follows:
“13. Representation; Current interests. (8/13)
(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) At any stage of proceedings pursuant to this Rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.
(3) Where, under Sub-rule (2), the Court appoints a person who is not a defendant, the Court shall make an order under Rule 8 adding him as a defendant.
(4) A judgement entered or order made in proceedings pursuant to this Rule shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, as the case may be, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.
(5) An application for leave under Sub-rule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgement or order.
(6) Notwithstanding that a judgement or order to which an application under Sub-rule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgement or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.
(7) This Rule does not apply to proceedings concerning —
(a) the administration of the estate of a deceased person; or
(b) property subject to a trust.” (Emphasis added)
26. This Rule as well as others (rr. 1, 2, 3 and 6) under Order 5 govern and regulate the mode or manner in which a representative or class action is to be brought before the Court. The Rule has been considered by the Supreme Court in the cases referred to by counsel for the defendants, and these are; Simon Mali (supra) and recently in Tigam Malewo (supra).
27. In Simon Mali (supra), the three appellants (who were the plaintiffs in the proceedings in the National Court) commenced proceedings claiming damages against the State as a result of police raid on their villages causing substantial damage to personal properties. Each of them commenced proceeding “on their Own Behalf and as Representative” of other unnamed members of their respective clans. A default judgment was entered against the State for its failure to file a defence to their claims. Subsequently, the lawyer for the appellants’ entered into negotiations with the State lawyers on the quantum of damages. A consent order for various amounts of damages was purportedly entered; however, it was soon set aside on application by the State on grounds, amongst others, of procedural irregularity. The appellants appealed to the Supreme Court contending, amongst others, that the procedural irregularity was not a sufficient ground to set aside the consent order. The irregularity which the trial Judge found was that the default judgment was entered with damages to be assessed in favour of the three named plaintiffs (the 3 appellants); however, the consent order included damages in respect to additional unnamed plaintiffs in the proceedings and therefore the trial Judge took the view that on the face of the record a irregularity existed which the Court had the inherent power to set aside. The Supreme Court agreed and held that the trial Judge quite properly exercised his inherent power to set aside the irregular order. In doing so, the Supreme Court made reference to and emphasised the requirements of the rules under Order 5 of the National Court Rules. The Court specifically referred to rr. 1, 2, 3, 6 and 13 whilst briefly discussing the question of proper mode of commencing a class or representative action in so far as Rule 3 is concerned stated:
“Contrary to what learned counsel for the appellants asserts, the legal representatives of the unnamed plaintiffs in all of the five (5) proceedings were required by law to “have their names included in a schedule (to the writs) or for their written consents to be filed”. And these written consents would have had to come by way of an Authority to Act Form.” (Emphasis added)
28. The Supreme Court then went further to state:
“We accept the State’s submission that in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules (supra), each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under O. 5, r. 13 NCR (Representation: Current interests).” (Emphasis added)
29. In Tigan Malewo (supra), the appellants are owners of customary land and water resources. They brought an action against the owner and operator of the mining company operating in their area. They claim compensation for alleged damage to their environment caused by the mining activity. On application the trial Judge dismissed the proceedings for a number of reasons, one of which is that, the plaintiffs were not properly identified and they failed to disclose their authority to represent other interested claimants in the proceedings. On appeal the Supreme Court concurred with and endorsed the trial Judge’s reasons by paraphrasing the requirement of Rule 13 of Order 5:
30. It is clear from the two Supreme Court decisions that the requirement of Order 5 Rule 13 must be complied with and a failure to do so would be fatal to the survival of the action. The later decision in Tigam Malewo approved and endorsed the decision in Simon Mali. Both are Supreme Court decisions and are binding on this Court.
31. The National Court in Joe Maiva (supra) followed the two Supreme Court decisions in applying these principles and dismissed the proceedings for, amongst others, the same reasons.
32. In this case, the plaintiff is suing in his capacity as Member for Goroka and the Chairman of the GJDP & BPC. As an elected Member of the National Parliament he is entitled to sue and be sued in his private and official capacities. The defendants do not take issue as to his private capacity or as an elected leader. However, the complaints relates to his capacity as the Chairman of the Committee (GJDP & BPC).
33. The GJDP & BPC is a legal entity created or established under the provisions of the Organic Law on Provincial Governments and Local-level Governments (Organic Law). It is created under s. 33A (1) of the Organic Law. It states:
“33A. JOINT DISTRICT PLANNING AND BUDGET PRIORITIES COMMITTEE.
(1) There shall be established, in each district, a Joint District Planning and Budget Priorities Committee.”
34. The composition of the Committee is provided under subsection (2) of s. 33A of the Organic Law and these includes the Member of Parliament representing the open electorate, who shall be the Chairman; the Presidents of the Local-level Governments and 3 other appointed members.
35. The structure of the JDP & BPC had changed recently. In 2014 the National Parliament passed a legislation known as District Development Authority Act 2014 (No. 40 of 2014) (DDA Act) which came into effect in December of that year. Consequently, the JDP & BPC is now replaced by a new body called District Development Authority (DDA). Section 4 of the DDA Act gives the DDA its’ legal characteristics. Sections 5, 7 and 11 confer on that new body its functions and powers. This is not disputed by the plaintiff.
36. Under s. 10 of the DDA Act, a Board is established for each Authority and the composition of the Board is provided under s. 12. The membership of the Board includes the Member of Parliament representing the Open Electorate, who shall be the Board Chairman, the heads of the Local-level Governments in the District and 3 other members appointed by the Open Member. So, in reality there is essentially no difference between the old and new regime in terms of the composition of the Board.
37. Notwithstanding the change in the law in terms of the identity of the legal entity, it is clear; the law recognises the plaintiff as the Chairman of the entity, be it the JDP & BPC or the Board of the DDA. As the Chairman, he is the head of the entity and leads the organisation. However, he is incapable in law to make unilateral decisions. He is required to seek the approval and endorsement of the entity he leads on matters affecting the rights and interest of the entity. This includes the right to institute legal proceedings.
38. In this case, it is submitted, the plaintiff relies on the minutes of the meeting of the GJDP & BPC dated 21 June 2013. A copy of the minutes is found in the affidavit of the plaintiff sworn on 28 October 2014 and filed on 04 November 2014 and marked as Annexure “N”. The minutes show that the issues and concerns in respect to the funds were deliberated upon during the meeting. However, there appears to be no specific resolution made by the Committee authorising the plaintiff to commence legal proceedings. The relevant resolutions in the minutes are recorded in paragraph 6 at page 6 of the minutes which are stated as:
“6. Resolution # 2.6 Market Status
39. Even if the Court is to accept these resolutions as constituting sufficient authorisation, it is still insufficient to satisfy all the requirements of the law. The requirements are clear. All intended plaintiffs or parties must be named in the originating process, in this case, the originating summons. This necessarily includes the Presidents of the Local-level Governments in the District and the 3 appointed members. Each of these persons must give specific written instructions to the plaintiff. In this case, none of these requirements are evident before the Court.
40. In Tigam Malewo (supra), the Supreme Court stated that the requirements of Order 5 Rule 13 of the National Court Rules go to the jurisdiction of the Court and therefore is a threshold issue. A failure to comply with the requirements necessarily means that the proceeding is incompetent and is not properly before the Court and hence the Court lacks jurisdiction.
41. As I alluded to, the requirement of the Rules are clear and the decisions of the Supreme Court are binding authorities pursuant to Schedule 2.9(1) of the Constitution. In the circumstances this Court is bound by the decisions of the Supreme Court. In consequence, the proceeding is accordingly dismissed. It is therefore unnecessary to consider all other remaining issues or submissions by the parties.
42. Having reached the conclusion on a technical procedural point, this does not mean that the plaintiff is without a remedy. It is of course open to the plaintiff to re-file in accordance with the law. However, it is obvious that the dispute has considerable political connotations, implications and overtones and therefore, in my view, is capable of being resolved amicably between the principal disputants within the political machinery in the Province. In this regard, the Court notes the statutory imperative as provided by s. 37 of DDA Act and in particular subsection (3) which is in mandatory terms. The effect of this provision discourages use of legal machinery and encourages political and administrative machineries in resolving conflicts and disputes of this nature. It encourages real and genuine dialogue in good faith espoused in the true spirit of good leadership with public interest as the overriding consideration.
43. The formal orders of the Court are:
__________________________________________________________________
Mawa Lawyers: Lawyers for the Plaintiff
AvROSS & Co. Lawyers: Lawyers for the First, Second & Third Defendants
Solicitor General: Lawyers for the Third, Fourth Fifth & Seventh Defendants
Twivey Lawyers: Lawyers for the Sixth Defendant
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