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Andama v Niningi [2020] PGNC 191; N8413 (3 July 2020)

N8413

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (IECMS) (JR) No. 11 of 2020

BETWEEN:
PETER LANGA ANDAMA AS CHAIRMAN OF THE NORTH KOROBA LOCAL LEVEL GOVERNMENT JUHA SPECIAL PURPOSES AUTHORITY
First Plaintiff

AND:
ALEX ARABIA AS TREASURER OF THE NORTH KOROBA LOCAL LEVEL GOVERNMENT JUHA SPECIAL PURPOSES AUTHORITY
Second Plaintiff

AND:
HONOURABLE PILA NININGI THE MINISTER FOR INTER GOVERNMENT RELATIONS
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2020: 03^rd July

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Officials of Local Level Authority Suspension – Minister for Inter Government Relations – Leave application – Standing – delay – Arguable case – Internal remedies exhausted – application for leave for Judicial Review granted – cost follow event

Cases Cited:

Ombudsman Commission v Donohue [1985] PNGLR 348
Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Pora v Leadership Tribunal [1997] PNGLR 1

Counsel:

P. Yange, for Plaintiff
No appearance for Defendants

RULING

03^rd July, 2020

1. MIVIRI, J: This is the ruling on the originating summons of the plaintiffs filed the 22^nd May 2020 for leave for Judicial review against a decision of the First Defendant by letter dated the 5^th May 2020 to suspend both plaintiffs as Chairman and Treasurer of the North Koroba Local Level Government Juha Special Purposes Authority (JSPA). The originating summons pleads error of law breach of procedures in Part V11 of the Constitution of Juha Special Purposes Authority. And seeks certiorari to quash that decision to suspend and also if leave is granted to operate as a stay forthwith.
   
2. At the outset since the filing of this summons and the suspension of both plaintiffs on the 5^th May 2020 that is only 16 days there is no delay satisfying order 16 Rule 4 of the National Court Rules for leave to be accorded to the plaintiffs. They satisfy this ground.
   
3. Both have satisfied service in accordance with Order 16 Rule 3 (3) of the National Court Rules (“the Rules”). To this effect the affidavit of service of one Victor Lovai of the 27^th May 2020 confirms service upon the Solicitor Generals office level 7 Sir Buri Kidu Haus and all documents filed have been served upon Senior Executive Assistant Betty Makis at 1.30pm of that office. This is satisfaction of the requirements of the rules and the directions of this court on the 30^th June 2020. Further affidavit relied upon of Paul Pori Yange has been also served. It attaches the Constitution of the North Koroba Local Level Government Juha Special Purposes Authority. In all the circumstances service has been satisfied in accordance with Ombudsman Commission v Donohue [1985] PNGLR 348.
   
4. The aggregate of all the material firstly the Originating Summons filed the 22^nd May 2020, the Statement pursuant to Order 16 Rule 16 (3) (2) (a) of the National Court Rules, Notice of Application for Leave to apply for Judicial Review of the same date, affidavit of the second Plaintiff’s verifying facts of the same date, Affidavit of the First Plaintiff and the following have been established prima facie.
   
5. An arguable case prima facie has been demonstrated by the plaintiffs because under the Constitution of the North Koroba Local Level Government Juha Special Purposes Authority section 39 Suspension of the plaintiffs is not valid without a prerequisite that is, a report prepared under section 36 is tabled with recommendations to the National Executive Council who will consider it and may either suspend all or any of the powers functions of the Authority. The views of the landowners are paramount in this regard whatever the recommendations maybe in the report of the Committee. This is the committee appointed to enquire under section 38 by the Minister because there is widespread corruption in the administration and affairs of the Authority. Including gross mismanagement of the financial affairs and persistent exceeding of powers and breaches of laws. And there is widespread dissatisfaction pertaining to the Authority amongst the People in the Local Level Government area. In other words, prima facie this ought to be the case with the Plaintiffs not without.
   
6. To materialize these the plaintiffs rely on their own affidavits, for Peter L Andama sworn the 18^th May and filed the 22^nd May 2020. Alex Arabia’s is the same and his affidavit also is used verifying the facts filed the same date with that of Paul Pori Yange annexing the Constitution of the Authority. Relevantly these establish that the plaintiffs are respectively chairman for the first and the treasurer for the second of the Juha Special Purposes Authority (JSPA). That authority was established under section 42 of the Local Level Government Administration Act 1997 on the 18^th May 2018 to represent the interests of the landowners in PDL9 in the PNG LNG Project.
   
7. The plaintiffs were both appointed in their respective offices on the 19^th August 2019 with the Deputy Chairman one Ben Anupi Herowa and Secretary Stanley Hogga Piawi out of 9 in comprising the executive management. It would appear that there has evolved a dispute within the executive management over the Deputy Chairman’s alleged involvement in two serious criminal allegations. The matter has ended in court. On the 5^th May 2020 both plaintiffs were suspended from their roles by the Minister hence this proceeding. There is no material prima facie to show a process in the suspension of both hence their challenge.
   
8. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [ 2005] PGSC 27; SC797 (28 October 2005. That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Both plaintiffs have standing in the matter they are both effected by the decision of the Minister and have fulfilled in the originating summons pleaded.
   
9. The decision is of the Minister for Inter government Relations, a public office and authority amenable to judicial review. And there is an arguable case within the meaning of Pora v Leadership Tribunal [1997] PNGLR 1 given the facts and materials set out above by both plaintiffs. Both have exhausted what is lawful in the resolution of this matter within the immediate area where this matter arose from. There is no other avenue other than the court and its inherent jurisdiction under the Constitution. They are well within it in this matter. These grounds are satisfied on the required balance for leave to be granted.
   
10. In all the circumstances both for and against I am satisfied on the material on the balance of probabilities both plaintiffs be accorded leave to apply for Judicial Review. Accordingly, both are granted leave to apply for Judicial review. As to the application of the grant of Leave to operate as a stay that is denied and not granted. They are both granted liberty to make that application separately not now.
    
11. As to the substantive cause of action they are directed to file and serve the Notice of motion and all other documents on all the parties effected. The matter is formally adjourned for directions hearing Monday 03^rd August 2020 at 9.30am before this court.
    
12. Leave to apply for Judicial review is granted. Costs will be in the cause.

Orders Accordingly.

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Island Legal Services: Lawyer for the Plaintiff/Applicant

No appearance for Defendants