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Andia v Wereh [2021] PGNC 482; N9349 (14 December 2021)

N9349

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 346 0F 2021

ANDY TUI ANDIA
Plaintiff

V

SAMSON WEREH
Defendant

Mt. Hagen: Eliakim AJ
2021: 9^th, 14^th December

PRACTICE AND PROCEDURE – application for interim restraining orders – considerations for its continuity – Failure to fully disclose all relevant facts would have affected granting of interim restraining orders – restraining orders uplifted.

Cases Cited
Golobadana No.35 Ltd -v- Bank of South Pacific (2002) N2309
Kune -v- Kapak (2010) N4018

Counsel
Mr. H. Pora, for the Plaintiff
Mr. D. Gonol, for the Defendant

RULING

14^th December, 2021

1. ELIAKIM AJ: The plaintiff was granted the following ex parte interim restraining orders on 18 November 2021, which returned today for inter partes hearing:
   
   • (a) “Until further orders, the Defendant is restrained from holding himself out as the District Administrator of Ialibu Pangia District and Chief Executive Officer of Ialibu Pangia District Development Authority and performing the functions thereof.
   • (b) Until further orders, the Defendant is restrained from holding out as a signatory and accessing the bank accounts of Ialibu Pangia District and Local Level Government thereof”.
     
2. The plaintiff now seeks continuity of these orders whilst the defendant opposes this, and that the proceeding should be dismissed on grounds of competency.
   

Facts

3. I will set out the facts of the case in two parts. The first part will be the facts provided to court on 18 November 2021, thus resulting in granting of the interim restraining orders. The second part will be the additional and or new facts presented on 9 December 2021.
   
   • (i) First part: 18 November 2021
     
4. The plaintiff in moving the application, relied on his affidavit filed 09/11/21.
   
5. The former acting DA Samson Wereh was suspended by the acting Provincial Administrator (‘PA’), Joseph Cajetan on 04/06/20. He then challenged his suspension by filing a Judicial Review in proceeding OS (JR) No.16 of 2020. Miviri J refused Leave for judicial review on 17/07/20 on grounds that it was a premature application as administration of the internal disciplinary process had not yet been completed.
   
6. On 12/06/20, the PA finally determined the defendant’s disciplinary charges, revoked his appointment and reverted him to his substantive position as Deputy District Administrator.
   
7. The plaintiff was then appointed as the new acting District Administrator (‘DA’) on the same day.
   
8. A one-year short term contract, prepared by the a/PA was signed by the plaintiff on 12/09/20 and further renewed on 12/06/2021 for a further six months.
   
9. Despite the revocation of his appointment, the plaintiff alleges that the defendant continues to hold himself out as the acting DA and refuses to hand over the office to him. The defendant remains a signatory to the District and local level government bank accounts and has been drawing down funds illegally.
   
10. The plaintiff alleges that the defendant therefore has been illegally and unlawfully duplicating parts of the plaintiff’s role and is causing confusion to the stakeholders despite clear directions from the former Acting PA and the current Provincial Administrator Mr. Jerry David.
    
11. Further, the plaintiff deposes that “service of the application on the defendant without a Court Order would likely cause the Defendant to stir up unnecessary trouble and disorder amongst the public service machinery in the District and supporters, as he claims to be the District Administrator.”
    
    • (ii) Second part: 9 December 2021
      
12. At the inter partes hearing, the plaintiff relied on his two additional affidavits filed 06 December 2021, while the defendant relied on his sworn affidavits and another sworn by the sitting Member of Ialibu Pangia District, Hon. Peter O’Neill.
    
13. That new evidence revealed that on 22 August 2018, the Secretary of the Department of Personnel Management (‘DPM’), Ms. Taies Sansan by virtue of powers conferred by s.24(2) of the Public Services (Management) Act 2014 (‘PSMA’), had issued an Instrument revoking all human resources powers and responsibilities of the Head of the Southern Highlands Provincial Administration (‘SHPA’) that were previously issued.
    
14. On 15 July 2019, and in line with the withdrawal of HR functions, the DPM Secretary Sansan executed an employment contract on behalf of the State with the Defendant, as District Administrator for Ialibu Pangia District. The PA was formally notified by Secretary Sansan through a letter on 05 September 2019.
    
15. As disclosed to this court on 18 November 2021, the PA suspended the defendant as Acting DA on 12 June 2020 and appointed the plaintiff as Acting DA.
    
16. In response, Secretary Sansan wrote to the PA on 15 July 2020, informing him that he had not followed the proper process in line with the requirements of the Public Services Management Act 1995 (as amended) and therefore his appointment of the plaintiff on 12 June 2020 was null and void. Further, the PA was reminded of the withdrawal of HR powers from the SHPA on 22 August 2018.
17. The PA then wrote to Secretary Sansan on 11 August 2020, insisting that his appointment of the plaintiff was proper and that he should be allowed to resume duties. In the same letter, he acknowledged the revocation of its HR powers stating “the main objective for revoking our HR powers was to ensure that there is no mass recruitment of individuals to positions as was the practice in previous years. I also understand that another reason was to avoid payroll fraud. In this case where an appointment was made to a Senior Executive position within the administration does not necessitate the objectives as mentioned above”. The PA then added ‘Hence, I would encourage you to consider the merits of the appointment and reconsider the position you have taken’.
    
18. There is no evidence of any further correspondence from Secretary Sansan on this issue.
    
19. The PA again wrote to Secretary Sansan on 08 October 2020, following up on his earlier request for an urgent meeting of the SHPA Disciplinary Committee. In the second letter, he wrote “As per my letter, we need to convene the meeting immediately and deliberate on pending SHP disciplinary matters. Of paramount concern is the case of Andy Andia -v- Samson Wereh for the DA/CEO position for Ialibu Pangia. The confusion as to the appointment process for that position needs to be clarified once and for all by the Disciplinary Committee for normalcy and stability to be restored to the administration of the Ialibu Pangia DDA”.
    
20. Hon. Peter O’Neill’s affidavit sworn 27 November 2021 and filed 30 November 2021, confirmed the defendant’s three-year contract of employment executed in 2019. He also attached a copy of his letter to the Secretary Department of Finance dated 07 July 2021, acknowledging the defendant as the duly appointed and incumbent CEO of Ialibu Pangia District Administration Authority.
    

Preliminary Issues

21. Mr. Gonol, counsel for the defendant, raised from the outset, the issue of competency of the proceeding. He submitted that the plaintiff, aggrieved by the decision of DPM to appoint and enter into a Contract of Employment with the defendant, should have filed a Judicial Review and not seek declaratory orders under an ordinary Originating Summons.
    
22. The plaintiff’s Originating Summons filed on 9 November 2021 claimed:
    

“1. An order in the nature of a declaration that the Plaintiff is the current and lawfully appointed Acting District Administrator of Ialibu Pangia District and Acting Chief Executive Officer Ialibu Pangia District Development Authority.

2. An order in the nature of a declaration that any function performed by the Defendant purportedly as the District Administrator of Ialibu Pangia District and Chief Executive Officer of Ialibu Pangi District Development Authority since 12 June 2020 is null and void, and illegal.

3. Consequently, an order restraining the defendant from holding himself out as the District Administrator of Ialibu Pangia District and Chief Executive Officer of Ialibu Pangia District Development Authority, and performing the functions thereof.

4. Consequently an order restraining the defendant from holding out as a signatory and accessing the bank accounts of Ialibu Pangia District and the local level governments thereof.

5. Costs of the proceedings to be paid by the defendant.

6. Such other orders the court deems fit”.

23. Mr. Pora for the plaintiff on the other hand, submitted that his client was properly appointed as acting DA by the PA who had appointing powers under the PSMA and its Regulation. He further submitted that although Secretary Sansan had the authority to withdraw delegated powers under s.24(2) of the PSMA, the PA’s powers to appoint the DA is derived from the OLPLLG and PSMA and its Regulations. Thus, it is not a delegated function from the DPM Secretary and as such, the purported revocation of HR powers by the DPM Secretary is ultra vires and it does not affect the PA’s powers to appoint a DA. Hence, counsel submitted that the plaintiff had been properly and duly appointed.
    
24. For the purposes of deciding whether to continue the interim injunction, it is not necessary to determine that issue.
    
25. However, with the new information that I have highlighted above, it is quite evident that confusion exists as to the proper and lawful appointing authority considering the revocation of HR powers from the SHPA.
26. There is no dispute that Secretary Sansan had delegation and revocation powers under s.24 of the PSMA. Further, the Instrument of Revocation clearly specified the powers and responsibilities that were revoked.
    
27. The PA on the other hand, in his numerous correspondences to Secretary Sansan, continued to express his opinion on the effect of the Instrument of Revocation on his powers to appoint the DA and insisted that the authority to appoint the DA was still vested in him pursuant to the OLPLLG and the PSM Regulations.
    
28. In any event, the PA in his letter of 08 October 2020 to Secretary Sansan, admitted that there was confusion on the appointment process which needed clarification.
    
29. In my view, both the PA and Secretary DPM had not taken adequate and meaningful steps to address the confusion and or any misunderstanding of the terms and effect of the Instrument of Revocation.
    
30. I am reminded that this proceeding is not one of Judicial Review, but a general originating summons under Order 4 Rule 3(2) of the National Court Rules.
    
31. Further, the Originating Summons seeks declaratory orders on the appointment of the plaintiff only and nothing in the construction of the Instrument of Revocation or the PSMA.
    
32. To do justice in the case and considering that the PA nor any other interested parties, have filed any legal proceeding to challenge the construction and or validity of the Instrument of Revocation, thus making it valid in all respects of the law, I invoke the inherent jurisdiction of the court under s.155(4) of the Constitution to set out the requirements under the relevant laws so far as the appointment of the District Administrators is concerned.
    

The Law on State Services

33. Section 195 of the Constitution provides for the enactment of Acts of Parliament which provides structures and organizations, employment of persons and terms and conditions of employment in respect of State Services.
    
34. To implement s.195 of the Constitution, the Public Services (Management) Act was passed in 1995, and recently amended in 2014. This Act also implements the OLPLLG in so far as an Act of Parliament is required to make provisions relating to the staffing of Provincial Governments and Local Level Governments.
    
35. A system of the Provincial and Local-level Government is established under the Organic Law and Provincial Governments and Local-level Governments No.29 of 1998 (‘OLPLLG’). Section 5(2) states; “Subject to the Constitution, the system of Provincial Governments and Local-level governments established by Subsection (1), shall be implemented in accordance with the Organic Law and an Act of Parliament”.
    
36. Part IV of the OLPLLG provides for the institutional structure of its administrative system. Section 73 (3) states; “A District Administrator shall be appointed in the manner and following the same procedure as is applicable to the appointment of officers of the Public Service”.
    
37. The Public Services (Management) (Amendment) Act 2020 has repealed and replaced s.61 of the principle Act in relation to the appointment of District Administrators:
    

“s.61 – (1) A District Administrator shall be appointed by the Provincial Administrator, in consultation with the elected member of Parliament representing the district following a merit based selection process in accordance with the Regulations.”

38. The Public Services (Management) (Employment of District Administrators) Regulation 2014 provides at s.11, the acting appointment process in the event there is a vacancy in the office of the District Administrator.
    
39. Part V provides for the Contract of Employment. Section 12 states:
    

“(1) As a senior officer of the Public Service, pursuant to Section 65 of the Act, a District Administrator is to be employed on a fixed period contract made under Section 41 of the Act in a prescribed format on such terms and conditions as determined by the National Executive Council.

(2) The Provincial Administrator shall prepare a contract of employment in the prescribed format for execution with the District Administrator and witnessed by the delegate of the Secretary Department of Personnel Management.”

What is the effect of the Instrument of Revocation dated 22/08/2018?

40. Section 24 of the PSMA states:
    

“(1) The department head of the Department of Personnel Management may, by written instrument, delegate to an office of any other departmental head or deemed department head, all or any of the powers and functions given to him or her under this Act (except this power of delegation).

(2) Powers delegated by the department head of the Department of Personnel Management under this section may be withdrawn at any time in the event of abuse of the delegated powers as determined by the Departmental Head of the Department of Personal Management.”

41. Thus, the secretary DPM has exercised her powers under s.24(2) of the Act.
    
    42. In the absence of any litigation to the construction and or validity of the Instrument of Revocation, the Instrument remains valid and enforceable in all respects of the law.
        
    43. The Instrument of Revocation revoked all powers and responsibilities including responsibilities and limitations specified in Columns 1 and 2 of the Instrument.
        
    44. For purposes of the matter before me, Column 1 includes:
        
        1. Part VII – Creation of Offices; Part IX- Recruitment and appointment of officers;
           
        2. Part XII- Training;
        3. Part XIV – Discipline;
        4. Part XV – Resignation and retirement;
        5. Part X – Employment Contracts for Senior Officers, section 41 Contract of Employment; and
        6. Part XVI – Provincial Government and Local-level government Administration, s.64 procedures relating to appointment etc, of District Administrators.
           
    45. The revocation instrument therefore seems to also encompass the PA’s powers to appoint and execute a s.41 Senior Officer’s contract of employment.
        

Should the interim Restraining Orders of 18/11/21 continue?

46. The principles to satisfy the continuity of interim restraining orders or injunctions are well settled in our jurisdiction.
    
47. I am not too sure whether there is a serious question of law and fact to be tried in the substantive proceeding. In my view, the relief sought in this proceeding depends largely on the effect of the Instrument of Revocation and or its construction, which I note has not been pleaded in the Originating Summons.
    
48. As to the balance of convenience, the only irreparable damage in my view would be the social and economic injustice continuously suffered by the people of Ialibu Pangia District, due to reduced or lack of quality service delivery as a direct result of the unfortunate power struggle in the District’s administrative head.
    
49. The plaintiff claims that there has been misuse of public funds by the defendant as a result of him holding himself out as the DA of Ialibu Pangia. There is however no evidence before me on the financial abuse as alleged by the plaintiff nor is there any evidence of the likely damage the plaintiff would suffer, if the interim restraining orders are lifted. I must add that both the plaintiff and defendant are named as individuals in their own right and not in any other capacity.
    
50. Thus, the balance of convenience does not favour continuity of the interim restraining orders.
    
51. Lastly, counsels directed my attention to the leading case of Golobadana No.35 Ltd -v BSP [2002] N2309. The application before his Honour Kandakasi J (as he then was) was for the continuation of an interlocutory injunction granted ex parte. In his deliberation, his Honour stated, “If counsel for the bank did not raise this point, it would have never been clarified or raised. This in my view would amount to a failure to fully disclose all the relevant and necessary information that might affect the grant or not of an interlocutory injunction. This is a requirement that must be met in equity given that the grant or not of an interlocutory injunction is an exercise of the court’s power or discretion in equity. A failure to meet this requirement can result in a lifting of an interlocutory injunction previously granted”.
    
52. His Honour held in that case that the plaintiff in failing to fully disclose all of the relevant facts before the Court operated against the continuity of the injunction.
    
53. I adopt and apply his Honour’s views in the case before me.
    
54. Considering the facts I have outlined above, I am of the view that the plaintiff in this case failed to fully disclose all relevant facts in its ex parte application before me on 18 November 2021, in particular the Instrument of Revocation and the defendant’s Contract of Employment which in my view, would have greatly affected granting of the interim restraining orders.
    

ORDERS

1. The interim restraining orders granted on 18 November 2021 are hereby uplifted.
2. The plaintiff shall pay the defendant’s costs of this interlocutory proceeding.
3. Time shall be abridged to time of settlement to take place forthwith.

________________________________________________________________

Henry Pora Lawyers: Lawyers for the Plaintiff

Danny Gonol Lawyers: Lawyers for the Defendant