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Samson v National Executive Council [2021] PGNC 471; N9347 (9 December 2021)

N9347

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 734 OF 2018


BETWEEN:
AQUILA SAMSON
Plaintiff


V
NATIONAL EXECUTIVE COUNCIL
First Defendant


AND:
ROBERT ALPHONSE KAIYUM
Second Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


AND:
FLY RIVER PROVINCIAL GOVERNMENT
Fourth Defendant


Waigani: Miviri J
2021: 03rd, 08th & 9th December


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Application for Adjournment on Eve of Trial Verbatim – Overriding Interests of Justice Where Lies – Non-Compliance Rules of Court –Stay of Proceedings No Order to – Application without Merit - Refused.


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Appointment of Provincial Administrator – Process of Law to Appoint – Process of Law Reverse to Rescind – Constitution Sections 149 (5), 86 (4) & 153 (2) – No Immunity Protection Apparent NEC & Head of State – Subject to the Constitution & Act of Parliament – Organic Law on Provincial Governments & Local Level Governments Section 73 (2) – Public Service Management Act – balance discharged – Certiorari Granted – Declaration Lies – Mandamus granted – Cost Follow the Event.


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion –Appointment Provincial Administrator – Process of Law to Appoint – Advice by NEC Section 86 (2) Constitution – Effect in Law Instrument Appointing – Lack of Gazettal Effect in Law – Gazette Meaning of –Authorization to Publish Public & Legal Notices – Whether Advice Head of State to Rescind Appointment – Lack of Effect In Law – PEC Recommendation Effect of – Appointment Not Rescinded – Judicial Review Granted – cost follow event.


Cases Cited:

Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804

Mirupasi v Australia New Zealand Banking Group (PNG) Ltd [2020] PGNC 46; N8215

PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126

Koim v O'Neill [2016] PGNC 344; N6558

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

Wari v Ramoi and Dibela [1986] PNGLR 112

Aeava v National Executive Council [2001] PGNC 62; N2136

In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154

Kipalan v National Parliament [2004] PGSC 42; SC728

Golu v National Executive Council [2011] PGNC 134; N4425

Lupari v Somare [2008] PGNC 121; N3476

Burns Philp (PNG) Ltd v The State [1989] PGNC 24; N769

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Text cited:

Blacks Law Dictionary 6th Edition West Publishing.


Counsel:


G. Shepperd & L. Painap, for Plaintiff
L. Kandi & A. B. Yauieb, for First & Third Defendants
P. Tamutai, for Fourth Defendant

RULING

09th December 2021

  1. MIVIRI, J: This is the decision on the trial of the Plaintiff’s substantive notice of motion filed of the 23rd October 2020 seeking the following orders:
  2. It is necessary to settle at the outset the application for adjournment made by the defendants. And this is the full reasons of the court after refusal of that application verbatim by the first, second, and third defendants, for vacation of the trial date and an adjournment, because the matter was now in the Supreme Court. And there was no Stay order by the Supreme Court upon the current proceedings. On the eve of trial, they made this application without compliance with the Rules, in that a motion seeking to adjourn was filed, served on the other side, calling the matter as it did here. So that they were on notice with the Court and on what basis it was being sought upon. That is not the case. Hence the application is without legs and does not advance. It is not the case that Justice overrides and so the requirement of the Rules can be dispensed with: Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804 (3 November 2005), which was followed by this Court in Mirupasi v Australia New Zealand Banking Group (PNG) Ltd [2020] PGNC 46; N8215 (28 February 2020). The facts here do not pose, because there is nothing to evidence compliance of the Rules particulars set out above. It is an application that is shallow and erroneous to grant.
  3. The subject originates from 2018 and it is now 2021, which is almost two (2) and half (1/2) years now lapsed with the matter still outstanding. Except for the time it took to the Supreme Court and reverted back here, it will not be excusable to allow further adjournment without proper material and compliance of the rules to justify. Adjournments are justified not at the convenience of the parties as they see, but by proper materials filed to sway the discretion of the Court, not without: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). Because it would be erroneous exercise of judicial discretion if it were granted, accordingly, it is dismissed as being without merit.
  4. Similarly, the argument of the defendants that mere allegations are raised as error of Jurisdiction and ultra vires is without any basis by read of the Statement in Support pursuant to Order 16 Rule 3 (2) (a). Clearly that is not the read at page 16 of the Review Book where the grounds are set out starting from paragraph 19 (1) where it specifically pleads, “The decision of the First Defendant of 02nd August 2018, NEC Decision 223/2018- Special Meeting No. 18/2018 is an error of Jurisdiction, ultra vires, null and void and therefore of no legal effect for the reason that the clear mandatory processes set out in the Constitution, Organic Law on Provincial Government and Local Level Government..., continuing over the page to 17, 18, 19, 20, 21 right through to the last page 25 of the RB document number 47, covering a very detailed and comprehensive pleading of the case that the plaintiff is bringing forth. This argument of the defendants is without merit and is dismissed forthwith.
  5. The assessment of both cases for and against, at the heart what sets the case one way, or the other, is the process that was followed to; the plaintiff’s cause is that lawful process was followed, and he was the Provincial Administrator Western Province duly appointed by that process originated by law. And his removal was not as a result of the reversal of that process in law, therefore certiorari lies to quash and he remains as he was, elevated by that process administered. He was removed in breach of procedure his removal did not stand in law. The remedies he pleads lies in his favour.
  6. In the case of the defendants, they contend that he was never elevated as Provincial Administrator, even if it were so, the appointing authority NEC and the Head of State had the power to remove him. The removal was within their discretion by law, so they didn’t commit any error of law, or acted ultra-Vires, and for that, unreasonable, within the Wednesbury sense. They did not exceed their discretion by law in the way that they had acted in removing him. There can be no cause for alarm, let alone certiorari, or declaration, or mandamus as contended by the Plaintiff given. Because the discretion in the decisions of the NEC and the Head of State in a Claim under Order 16 of the National Court Rules, is not caught, because of the protection and immunity to the NEC, and the Head of State’s decisions, by Section 86 (4) and 153 (2) of the Constitution.
  7. Section 86 Functions, Etc of the Constitution contended granting protection and immunity is as follows:

(1) The privileges, powers, functions, duties, and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of the Parliament.

(2) Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.

(3) Any instrument made by or in the name of the Head of State shall recite that it is made with, and in accordance with, the advice of the National Executive Council or of any other body or authority in accordance with whose advice the Head of State is obliged, in the particular case, to act, but failure to comply with this subsection does not affect the validity of an instrument.

(4) The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.

  1. Here the privileges powers functions exercised by the Head of State are derived from, defined granted by Law, either by the Constitution itself, or Acts of Parliament. Which set out the canvas from which he paints not without. The perimeter of the exercise of either privileges, powers functions have their source from the Constitution and any legislation that accords him so. He cannot operate without that basis because that would be without any authority in law, therefore unlawful illegal. Section 86 (2) reads “...the Head of State shall act only with, and in accordance with, the advice of the National Executive Council,..” He acts not of his own accord but with and in accordance with the advice of the NEC. Any decision emanating from him is in and with the advice of the NEC not without. And he is not accorded any protection if he ventures outside. By acting within a power given as here in the appointment of a public Servant or official, he is acting in the determination of an administrative decision. Which involves the determination of rights of the Individual as such, he is obliged to observe the principles of natural Justice pursuant to section 59 of the Constitution. And it follows that is not a policy or political decision: Koim v O'Neill [2016] PGNC 344; N6558 (2 December 2016).
  2. In my view the primary concern underpinning this cause of action is whether or not procedure was followed to install firstly the Provincial Administrator Western Province, Aquila Samson. Secondly whether procedure was followed to rescind that decision to appoint him as the Provincial Administrator and to appoint the Second Defendant. Because Judicial Review is not concerned with the substance of the matter, rather the procedure that has been taken to arrive at that decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
  3. And so, it is not about the immunity or protection under the Constitution because there is none in the reading of section 86 set out above upon the Head of State. Even reading section 153 VALIDITY OF EXECUTIVE ACTS of the Constitution:

“(1) Subsections (2), (3) and (4) are subject to any Constitutional Law or Act of the Parliament.

(2) The question, whether the procedures prescribed for the National Executive Council have been or are being complied with, is non-justiciable.

(3) The question, whether any, and if so, what report has been given to the National Executive Council by the Advisory Committee on the Power of Mercy, is non-justiciable.

(4) No act of a Minister is open to challenge on the ground that he was not empowered to perform the act, if some other Minister, or any Minister, was so empowered.

(5) This section does not limit the jurisdiction or powers of the Ombudsman Commission, or of an authority or tribunal established under Division III.2 (leadership code).”

  1. Section 153 (2) is not non justiciable per se, because it is subject to the Constitution and an Act of Parliament. It means in its operation it will obviously be not contrary to the Constitution, nor will it breach other parts or sections in its application. It will be compatible and harmonious with it. Its application will not breach or erode it. In the aggregate it is not a free fall for the NEC in the advice that it makes, because section 153 (2) is subjected to subsection 153(1), meaning it must accord with the Constitution, or an Act of Parliament not without. In that respect it is justiciable. No doubt the Legislature accepted that there will be short comings, decisions not compatible with the law, which must be settled within and recourse to the process of the Courts to arrive at the hand of Equity for all. Judicial Review is of the Court of Equity. Protection is by the definition application of the Constitution and Acts of Parliament not without. Which is sensible in the light of section 59 PRINCIPLES OF NATURAL JUSTICE. Which says specifically:

“(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

  1. Therefore Section 153 (1) subjects and incorporates the application of section 59 in that a person who is affected by the decision of the NEC can take that matter to a court of Law. In my view, Wari v Ramoi and Dibela [1986] PNGLR 112 does not offer what the defendants contend in reliance. The head note specifically endorses that, “(Obiter) The immunity from judicial proceedings afforded the Head of State under the Constitution, s 86(4), protects only the lawful exercise of the discretion which is contained in the advice. It does not protect the exercise of a discretion which is ultra vires or the exercise of a discretion which may be inconsistent with the provisions of the Constitution.” This view is confirmed in Aeava v National Executive Council [2001] PGNC 62; N2136 (2 August 2001), that suspension of a chief Executive by the Head of State comes with it the observation and adherence of natural justice, here by the head of State. Because the power to appoint includes the implied power to suspend. And therefore, the suspension over a long period of time was considered harsh and oppressive and therefore unlawful.
  2. Parliament did not remove the Prime Minister Sir Michael lawfully and by the Constitution just because he was absent in three sittings of Parliament, and Peter O’Neil as Prime Minister was not lawfully elected as Prime Minister, the election was unconstitutional and invalid; In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154 (12 December 2011). Not even the Parliament can avoid the dictate of the Constitution and the laws of the land. And here the head of State and the National Executive Council are no different. The Constitution is Supreme Law section 10 and 11. And its words are specific:

“(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.


(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

  1. And the advice to the Queen as the head of State is not just any advice, because “The type of "advice" referred to in S.86 (2) is clear. They cover the usual advice on matters covered in Subsection (1). These include reference to the provisions of the Constitutional Law or Statute which confers the privileges, powers, functions, and responsibilities on the Queen. The type of advice covered in Subsection (2) include advice of the decision made in "a particular case" by the body or authority which gives rise to an occasion for the Queen to act in accordance with the advice she is given. In the present case, reference would be made to Parliament's decision under S. 88 (1) and Her Majesty would be requested to make the appointment in accordance with the decision of the Parliament. Such advice in our view is justiciable because the NEC is required by law to give the correct advice of the matters in Subsection (1) and (2), for the Queen to act on the advice correctly. This we believe is what Kidu CJ in Wari v Ramoi meant when His Honour said:

"This means of course that no court has jurisdiction to look into questions relating to the advice given to the Head of State .... This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested."

For instance, in relation to the nomination of a person to be the Governor-General, the NEC's advice to the Queen of a person not nominated by the Parliament is clearly justiciable for the NEC cannot advise the Queen and the Queen cannot appoint someone who is not nominated by the Parliament.”

  1. This is clear expression by the Supreme Court that the advice to the Queen the head of State is susceptible to the tentacles of the Constitution and the laws if it is clearly wrong, unconstitutional, and unlawful. The court ordered the National Executive Council after its determination to advice the Queen that there was a vacancy in the office of the Governor General. And the acting Speaker to advice parliament that as a result of the decision there was a vacancy in the office of the Governor General. “ The Clerk of the Parliament Mr. Ano Pala and the Speaker of the Parliament, the Honourable Bill Skate shall conduct and supervise a new election for the Parliament's nominee for the office of the Governor-General in accordance with the Constitution and the Organic Law on the Nomination of the Governor-General, as interpreted by this Court,”Kipalan v National Parliament [2004] PGSC 42; SC728 (31 March 2004).
  2. And this is express that where the rights of an individual are affected by the actions of the NEC where there are clear acts contrary to the provisions of the Constitution or the Organic law or Statute, the Court has justiciability to review the acts: Golu v National Executive Council [2011] PGNC 134; N4425 (21 October 2011). The NEC maybe the pinnacle of the decision-making authority of the land but its decisions are reviewable by the Court: Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008), and orders have been made remedying the decisions with prerogative writs issued.
  3. It is also pertinent at this juncture to define what is a gazette because that is always the case after a decision is made by the NEC and the Head of State, that it is gazetted. The Interpretations Act 1975 Section 3 Interpretation of Terms, defines “the National Gazette” means the official journal of that name of the National Government provided for by Section 252 (the National Gazette) of the Constitution, and includes any Special National Gazette, National Gazette Extraordinary or Supplement to the National Gazette;” And Section 252 is in these terms; THE NATIONAL GAZETTE. “There shall be an official journal of the National Government, which shall be known as the National Gazette or by such other name as is given by or under an Act of the Parliament.”
  4. Google defines “ Journal” as a newspaper or magazine that deals with a particular subject or professional activity. For example, Medical Journal. Secondly it defines it as “ a daily record of news and events of a personal nature; a diary. For example, whilst abroad he had kept a journal.” And Wikipedia the free encyclopedia defines A government gazette (also known as an official gazette, official journal, official newspaper, official monitor, or official bulletin) is a periodical publication that has been authorised to publish public or legal notices. It is usually established by statute or official action, and publication of notices within it, whether by the government or a private party, is usually considered sufficient to comply with legal requirements for public notice, Blacks Law Dictionary 6th Edition West Publishing.
  5. Gazette is official journal of Government. It is like a newspaper or magazine that deals with a particular subject, here the publication of the appointment of a Provincial Administrator, telling the world what the Government has done in respect of the appointment of the Provincial Administrator for Western Province. Or the enactment or amendment of a particular law or regulation, or the grant of a lease to an applicant, or a successful bidder in a major contract with the State. It is done by the Government Printer and instances where approval is obtained in the daily newspapers circulating.
  6. So, in law the appointment is made and the publication in the gazette is telling the world of the appointment of that fact. Here the plaintiff relies to advance his cause with the evidence material, that is contained in the Review Book filed of the 23rd July 2021 Document number 49. Tab 5 is his own affidavit sworn and filed of the 16th October 2018. There he deposes the following.
  7. He was appointed as the new Provincial Administrator for the Western Province by the NEC in its decision of the 153/2018-meeting number 05/2018 on the 07th June 2018. And he was advised by the Minister for Correctional Services, Member for Middle Fly, Roy Biyama of this fact on the 15th June 2018. And on the 18th June 2018 the Minister for Public Service Kapavore notified him by text messaging him as follows: “Aquila Good Evening. You have been appointed PA Western. I’d like to see you tomorrow at 10am, Minister Public Service.”
  8. And following he met with Minister Kapavore on the 19th June 2018 in the Company of the Secretary for the Department Madam Acting Secretary Tais Sansan. And it was at this meeting that he was formally advised of the decision by the NEC and the reasons for that decision. He was also advised then that this was the Government’s decision which would be defended. And that once the appointment was gazetted consistent with the NEC decision, he would be given a copy of his contract and the gazette.
  9. On the 27th June 2018 he sent a text message to Acting Secretary Sansan requesting copies of the formal documents including the NEC decision appointing him but received no response. And on or about the end of June he had a meeting with the NEC Acting Secretary, Grace So-on who confirmed his appointment. He continuously followed up with Acting Secretaries Sansan and So-on for the formal documents of his appointment but was not given any documents.
  10. He conducted a search at the Government Printing Office for any Gazettes concerning his appointment as Provincial Administrator on the 07th June 2018. He did not locate any except for Provincial Administrator Morobe.
  11. So, on the 26th July 2018 he met with Secretary So-on following up with the Gazette for his appointment and was told that it was on hold for reasons she would not tell him but added that the Prime Minister and the Governor for Western Province would tell him.
  12. Following on the 30th July 2018 he wrote to Secretary So-on regarding the Gazette for him to take up his appointment in the province so he could commence duties but he received no response since.
  13. And on the 02nd August 2018 the NEC through its decision number 223/2018-Special Meeting No. 18/2-18, which is now the subject here, amongst others approved to rescind its Decision 153/2018-Meeting No 15/2018 appointing the plaintiff as Provincial Administrator for Western Province. And in that same meeting the second defendant was appointed as the Provincial Administrator Western Province for a term of four (4) years.
  14. Which aggrieved the plaintiff who instituted initially proceedings for leave on the 17th October 2018, which was granted, hence this proceeding to seek judicial review of the matter. Particularly in the light of the fact that; “On the 14th May 2018, the fly River Provincial Government resolved to recommend a Robert Alphonse Kalyun (Second Defendant) as its preferred candidate besides two other candidates on the list of candidates submitted to the National Executive Council (NEC) by the Provincial Executive Council (PEC) for appointment as permanent Provincial Administrator for Western Province. Review Book page 37.
  15. On 07th June 2018, the NEC resolved to recommend Aquila Sampson (Plaintiff) to be appointed as Provincial Administrator for Western Province. (Review Book page 39).
  16. The Fly River Provincial Government petitioned the NEC, by way of letter dated 08th June 2018 urging the NEC to reconsider and rescind its decision of 07th June 2018, upon noticing that its preferred candidate for the position of Provincial Administrator for Western Province was overlooked and not recommended by the NEC for appointment by the Head of State. (Review Book page 44).
  17. The NEC on 02nd August 2018, based on the petition by Fly River Provincial Government, recalled, reconsidered, and altered its decision dated 07th June 2018, and recommended to the Head of State that the Second Defendant (preferred Candidate) be appointed to the Provincial Administrator for Western Province. (See Review Book page 78).
  18. The Head of State by Gazettal Notice published on 24th August 2018 appointed the Second Defendant as Provincial Administrator for Western Province. ( See Review Book page 273).
  19. The relevant law is Section 73 Organic Law Provincial Governments and Local Level Governments which creates the office of the Provincial Administrator. Section 73 (2) (a) calls for a list of three submitted by the Provincial Executive Council. From which the National Executive Council has consultation with the Public Services Commission on the subject Section 73 (2) (b). After which from the list it will appoint the Provincial Administrator. The section does not say that the candidate is that which is recommended by the Provincial Executive Council, and failure to appoint such a person does not mean that the procedure is recalled at the discretion of the Provincial Executive Council, on representation to the NEC by letter voicing contempt in the appointment. The Section does not confine the position holder to those in the discretion of the PEC. Nor does it say that the candidate is in the order of preference by the numbering given of the three. In my view it is a process in law to arrive at the Provincial Administrator. To get the best possible on merit for the job. Because section 1 of the Public Services (Management)(Employment of Provincial Administrators) Regulations 2014 (Regulation) states; “ (1) Section 73 of the Organic Law on Provincial Governments and Local-Level Governments provides that a Provincial Administrator shall be appointed by the Head of State on the advice of the National Executive Council pursuant to a resolution of a Provincial Executive Council chaired by the Governor of the Province.

(2) The PEC shall make a resolution to recommend to the National Executive Council to appoint a Provincial Administrator as a deemed Departmental Head under the Public Services Management Act 2014 in accordance with section 61 of the Act and the Regulation.”


  1. The affidavit of Hon. Taboi Awi Yoto MP sworn of the 21st September 2020 and filed that same day at annexure “A” page 241 of the RB, recommended the Plaintiff as one of the persons for appointment as the Provincial Administrator. It is a Provincial Executive Council decision. And then annexure “B” at Page 243 of the RB, the appointment is made of the Plaintiff as the Provincial Administrator for Western Provincial Administration. It is important to read that; “ On the 07th June 2018, Council:
    1. Noted the content of Statutory Business Paper No. 48/2018;
    2. Noted the Western Province PEC’s resolution of Meeting No. 02/2018 on 14th May 2018;
    3. Approved to advice the Head of State to;
      • (i) Revoke the appointment of Mr. Robert Alphonse Kaiyun as the Acting Provincial Administrator of Western Province administration;
      • (ii) Appoint Mr Aquila Sampson as the new Provincial Administrator of the Western Provincial Administration for a period of four (4) years effective on and from the date of this decision; and
      • (iii) Execute on behalf of the State, a contract of Employment with Mr. Aquila Sampson.
    4. Directed the First Legislative Counsel to prepare the necessary instruments of revocation and appointment for execution by the Head of State and for gazettal; and
    5. Directed the Acting Secretary for the Department of Personal Management to prepare a performance-based contract of Employment for Mr Aquila Sampson for execution by the Head of State.”

It is certified and signed by Grace So-on Acting Secretary of NEC as the correct record of the decision reached by the NEC and co signed by the chairman of the NEC Prime Minister Peter O’Neill. Dated of the 14th June 2018.

And distributed to the Prime Minister/Minister for Justice & Attorney General/ Minister for Public Service/Personal Management/First Legislative Counsel/State Solicitor/ Provincial & Local Level Govt affairs/PMNEC/Justice & Attorney General/


  1. This is the NEC decision number 153/2018 of Meeting No. 05/2018, no doubt sighted by Minister Kapavore because he was copied it by the distribution list set out above. Which included the Acting Secretary for the Department Tais Sansan who both saw the plaintiff on the 19th June 2018 after the Minister had texted for his audience with him on the 15th June 2018, which is consistent with the evidence of Minister for Correctional Services and Member for Middle Fly Roy Biyama. He too being a cabinet minister was well aware and relayed to the Plaintiff on the 15th June 2018. This evidence is the same evidence from Grace So-on Acting Secretary of NEC and Acting Secretary Department of Personal Management Tais Sansan.
  2. There is nothing against their evidence levelled by the Defendants to sway otherwise than what they are saying is the truth, that the Plaintiff was duly appointed through formal process of law to be the Provincial Administrator of Western Provincial Administration for a Period of four (4) years from the 14th June 2018. Comparably annexure “C” of the affidavit Hon. Taboi Awi Yoto MP at pages 246 to 250 of the RB is not derived from either the Constitution, or the Organic Law on Provincial & Local Level Government, or the Public Services Management Act, and therefore, a basis to change or amend the decision the NEC made on the 14th June 2018. It is evidence of breach of procedure by the NEC when it was swayed by this letter to alter the lawful cause earlier.
  3. Further evidence of this fact is annexure “D” of that affidavit, Provincial Executive Council decision, NG FRPG/PEC 23 of 26th June 2018 Special Meeting No 3/2018. Petition to revoke the appointment of Mr. Aquila Sampson as Provincial Administrator for Western Province. Dated 26 June 2018. There is no provision under the Constitution, the Organic Law, and the Public Service Management Act to allow for this. It is further evidence of breach of procedure by the law. Which includes annexure “E” contained at pages 254 to 259.
  4. Even more damning is the evidence set out in the affidavit of the Plaintiff sworn of the 16th October 2018 Tab 5 in the RB page 72 to 76. The annexure “AS 9” are firstly a letter under hand of Taboi Awi Yoto MP Governor and Chairman of the Fly River PEC. The date of the letter is 12th July 2018 addressed from his office to Ambassador Issac Lupari CBE, Urgent intervention by the Chief Secretary on the appointment of Provincial Administrator for Western Province. This letter attaches Letter addressed to Ms Grace So-on dated the 11th June 2018 from the Ministry of Public Service under hand of Public Service Minister Elias Kapavore, subject as Hold the Gazettal of the Appointment of Provincial Administrator for Western Province until Further Notice. The contents the letter reads; I refer to the above and advise that the gazettal of the appointment of the Western Provincial Administrator as per NEC Decision No. 153/2018 of 07th June 2018 be put on hold immediately until I have further discussions with the Prime Minister, as a result of the appeal by the Provincial Executive Council.”
  5. This evidence is proof that a gazettal was prepared to be published to evidence the appointment of the plaintiff, as the Provincial Administrator of the Western Province, Provincial Administration. It was in the possession of Grace So-on who was directed to place it on hold and not to publish it, because of the letter raised by the PEC. So, it means for all intent and purposes the appointment had been made completed that the plaintiff was the Provincial Administrator of Western Province. He stood in law as being duly appointed by the due process of law. The same cannot be so of the Second Defendant pursuant to section 6 (1) of the Regulation, because he was coming from grade 18 level, and it was not an open transparent assessment illuminated by the facts set out above. Including the requirements of the law set out above. He simply did not qualify to run as a candidate for that job, let alone eventually an appointment. What happened and culminated was ultra vires, null and void and of no legal effect.
  6. This is because section 73 (2) of the Organic Law seals that all substantive appointments of the Provincial Administrator shall be made by the NEC from a list of three persons submitted by the PEC. Which has already been done here. And it is based on that input that pursuant to section 17 (3) of the Regulations the NEC may either approve or reject the recommendation of the PEC. It will not introduce a new candidate. The evidence is that this process has been exhausted leading to the decision of the appointment of the Plaintiff. And it is mandatory by section 17 (4) of the Regulation that once the NEC approves the PEC recommendations these steps must take place:
  7. It is clear the full mandatory requirements under section 17 (4) of the Regulation were not heeded by the NEC to give effect to appointment made of the Plaintiff as Provincial Administrator Western Province. Because after it did by the operation of section 149 (5) of the Constitution, the NEC was bound by the Organic Law and the Regulations after having processed the PEC recommendations it did not have the power to rescind its decision appointing the Plaintiff as PA Western Province. And appointing instead the Second Defendant. In this regard there was no contract executed by the Plaintiff, coupled with a PEC recommendation to give effect to section 26 of the Regulation. And therefore section 26 was not invoked and the actions stemming did not fall within law. Including the appointment of the Second defendant.
  8. And this is coupled with the fact that the Second Defendant was not free of any criminal charges or outstanding court cases of a nature likely to injure the professional standing and reputation of the officer, as verified by the Police Commissioner pursuant to section 1 (1)(f) of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 and section 5 (1) (f) of the Regulation both identically matched.
  9. Contrary to these provisions the Second Defendant had outstanding Court cases, a Contempt of Court Charges in the Daru National Court in proceedings OS 202 of 2016-Gull Gorgom v Wobiro & Ors. Annexure “AS 11” was a true copy of the Notice of motion for contempt and “AS 12” was the Statement of Charge against the second Defendant. And annexure “AS 13” is the criminal investigations against the Second Defendant complaint registered number FCR No. 284 of 2018. He did not meet the requirement of both sections under the laws set out above to qualify as a candidate, and his appointment violated carrying forward basis to set his appointment as being in breach of the laws. A further provision violated was section 5 (1)(i)(i) that he was coming with holding down a grade 18 positing which was not the level called for in the Provincial Administrator which was grade 19 and above. The evidence at Tab 5 of the RB annexures “AS
  10. Here is a case where the NEC has not lived up to its status, that it is the pinnacle of the highest decision-making body of government’s executive arm, by the facts illuminated by the evidence set out above. It must follow as in Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008), that the rule of law its observance is to all regardless, even the National Executive Council is susceptible to its tentacles. Where there is abuse of authority and power and procedure has not been followed, even if it is the NEC, it is clearly subject to judicial review: Burns Philp (PNG) Ltd v The State [1989] PGNC 24; N769 (3 November 1989). That is the case here beyond the balance of preponderance in favour of the plaintiff.
  11. Because he would not be the plaintiff in this proceeding if he were not drawn in as second of the three persons who were short listed for appointment as the Provincial Administrator of the Department of Western Province. That short list is annexure “AS-1” of his affidavit described as Fly River Provincial Government Provincial Executive Council decision number NG FRPG/PEC 20 of 14th May 2018 and subject is Recommendation for Appointment of Permanent Provincial Administrator for Western Province. It is a resolution of the Provincial Executive Council evidenced by its official records referenced numbered.
  12. And it is pursuant to a motion moved by Honourable Wapri Gaini MPA Deputy Governor seconded by Honourable Betty Wine MPA chairlady for Health. It is signed by the Secretary of the Executive Council Gula Asiri and counter signed by Honourable Taboi Yoto MP Governor and Chairman of the Provincial Executive Council dated the 14th May 2018. For all intent and purposes, it is an official Government document out of and adhering to process within the Government. Any reasonable person sighting in my view would be enticed as the plaintiff to take the course he took. Because the second defendant and one Utoro Ekesae were the other persons on that short list.
  13. Process was followed leading to his appointment as Provincial Administrator, that would have been the road in reverse to unseat him. As it is the balance of preponderance by the Constitution, the Organic law on Provincial and Local Level Governments, Public Services Management Act and the Regulation were jointly and severely not adhered to in the revocation of his appointment. There is apparent error of law on the face and ultra vires, the sections which have been set out above discharging the balance in favour of the motion by the Plaintiff. It is simply judicial review made out by the plaintiff: 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).
  14. He is therefore entitled to the remedies that he seeks in full without any doubt. Accordingly, the formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Young & Williams Lawyers: Lawyer for the Plaintiff

M.S. Wagambie Lawyers: Lawyer for the First, Second, & Third Defendants

Tamutai Lawyers: Lawyer for the Fourth Defendants

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