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Yamuna v Mori [2021] PGNC 97; N8754 (3 February 2021)

N8754

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 78 OF 2020 (IECMS)

BETWEEN:
RUEL YAMUNA
Plaintiff

AND:
HON. WERA MORI, In his capacity as Minister for Environment & Conservation and Climate Change
First Defendant

AND:
JACOB EKINYE, In his capacity as General Management, Adaptation and Projects Division of Climate Change and Development Authority
Second Defendant

AND:
CLIMATE CHANGE AND DEVELOPMENT AUTHORITY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 11^th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave application for Judicial Review – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Delay – Arguable case –Internal processes uncertain – Jurisdiction properly invoked – Balance discharged – Leave granted – cost follow the event.

Cases Cited:

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Counsel:

S. Wanis, for Plaintiff
S. Liria, for First Defendant
I. Mugugia, for the State
G. Tine, for Second & Third Defendants

RULING

03^rd February 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons filed on the 1^st December 2020 under order 16 Rule 3 (1) and (2) of the National Court Rules, for leave to review the decision of the first defendant by way of a letter dated the 23^rd November 2020 served on the Plaintiff on the 27^th November 2020 that purportedly suspended the Plaintiff as Managing Director of the third defendant, and purportedly appointed the second defendant as the Acting Managing director of the third defendant.
   
2. Primarily Leave is granted after satisfaction on the balance of preponderance of the following requirements; firstly, the plaintiff is directly affected by the decision that is made. He has locus standi in the matter. That an arguable case is demonstrated prima facie. And that he has not delayed in so pursuing after exhaustion of all internal process and procedures in the matter.
   
3. The primary evidence relevant is the letter annexure “RY6” to the affidavit of the plaintiff sworn of the 30^th November 2020 and filed the 1^st December 2020. It is from the office of the Minister, the Ministry of Environment and Conservation and Climate Change. It is addressed to the Plaintiff in his official capacity as the Managing Director of Climate Change and Development Authority. The subject is allegations of misconduct and misappropriation in the Climate Change and Development Authority.
   
4. At the forefront, the letter is in response to the response letter of the 07^th September 2020 to the Minister by the plaintiff. Who is not satisfied with the response because there are more questions posed as opposed to answers and settlement of the query raised in respect of funding of K1million, expended without the approval of the National Executive Council (NEC). That no acquittal has been provided, but that reply was made submitting all to the Ombudsman Commission.
   
5. Secondly, the letter raises Conspiracy to defraud the State of K1.5million arising from a Consultancy contract purportedly worth K1.5million done with clearance that it was within law and legally so cleared by the Department of Justice and Attorney General. When that was not the case because the letter of the 7^th September 2015 to Late Kino Wenge categorically states the contrary, “For you to charge Legal fees as you have done on your own is illegal” And that any proceeds owing to a deceased is paid to the Public Curator but you approved and paid to the wife of the deceased Mrs Koran Wenge.
   
6. The letter also raises Misappropriation detailing acquittal of travel allowances and cash advances totalling more than K 220,000. In addition, the administration of the office has been lacking efficiency. Hence the decision taken under section 47 of the Climate Change Management Act 2015 as Minister responsible without a Board in existence to suspend you effective 27^th November 2020 for an indefinite period. And in the interim appoint Mr. Jacob Ekinye General manager for Adaptation and Projects Division to be Acting Managing Director pursuant to section 48 “until such time you are cleared through an independent investigation.”
   
7. The Minister has suspended the plaintiff effective of the 27^th November 2020 for an indefinite period. It means substantially the plaintiff still holds the chair as the Managing Director of the third defendant. That is clear because the appointment of Jacob Ekinye is until such time plaintiff is cleared through an independent investigation relating to the allegations raised against him. And this fact is clear because the plaintiff is the Managing Director of the third defendant since the 03^rd May 2017 for four years ending on the 17^th May 2021. Until that date will he cease to hold that office. He is suspended and the matters which are the subject of the letter set out above must be properly settled through the process. He satisfies that he has standing or locus Standi in the matter given all set out above. This ground is made out in his favour.
   
8. Given these facts the relevant law applicable is the Climate Change (Management) Act 2015 “the Act”. Section 44 of which establishes the office of the Managing Director who is the Chief Executive officer of the Authority. And he “shall be appointed by, or suspended or removed from office in accordance with this Division and the Act,” Section 44 (4) (b) of the Act. The process of appointment is set out under section 45 which includes advertisement of the position, assessment of each of the applicants CV and the like, and is merit based appointment which is recommended by Appointment Committee set up by section 17 of the Act, to the National Executive Council, who will out of the list of applicants on merit advice the Head of State to make appointment of the selected candidate to the position of the managing director. The functions discharged materially underpins the running of the Authority by section 46 of the Act.
   
9. It is explicit and clear that internal disciplinary processes and proceedings must follow what is set out by the law, relevantly here that is the Climate Change (Management) Act 2015 (the Act). Only suspension has allegedly taken place there is no decision relating to that suspension or emanating out of it as to what entails the plaintiff as a result of the alleged conduct in question on that day.
   
10. The suspension will be in order by section 47 Vacancy in the Office of The Managing Director of the Act. This section discretions upon the National Executive Council to, “remove or suspend a Managing Director if the National Executive Council is satisfied that the -
    

(a) a person’s services are no longer required; or

(b) person is of unsound mind; or

(c) person’s actions or inactions bring disrepute to the Authority or Papua New Guinea, or

(d) person resigns; or

(e) person is convicted of an indictable offence either in Papua New Guinea or overseas; or

(f) person is dismissed from office by a leadership tribunal; or

(g) person is declared bankrupt or insolvent; or

(h) person commits very serious disciplinary offence under this Act or any other law; or

(i) person is disqualified by any other law.

11. And Section 47 subsection (2) (a) (b) of the Act continues that if the office of the Managing director is vacant or is likely going to be vacant due to the completion of the term of the current term occupied the appointment Committee shall declare that fact in the National Gazette and at lease one of the daily newspapers. And invite applications for the appointment to that office.
    
12. What is clear from the letter “RY6” set out above is that it is authored by the Minister Honourable Wera Mori MP suspending the plaintiff. It is not from the National Executive Council in reliance of section 47 set out above. And the composition of the National Executive Council is clear by section 149 (The National Executive Council) of the Constitution. Therefore section 47 is not played out in the suspension of the Plaintiff. Effectively he has not been suspended in law and remains as he is in the position he occupies as Managing Director of Climate Change and Development Authority prima facie. And this also relates to the purported appointment of the second defendant as the Acting Managing director of the third defendant. There is no authority in the Minister to do what he did and the law is specifically set out above. The Authority in law under that section is not the minister here Honourable Wera Mori MP. It means for the purposes of this proceeding he has a very strong arguable case and discharges the balance in his favour to be so granted.
    
13. Further he has been suspended which allegedly begins the internal disciplinary process. It has not been completed and therefore would not be in court now without that fact. It means that the Jurisdiction of this Court has not been invoked to step into an internal process yet to be completed. There is no power in the Court to circumvent an internal disciplinary process and procedure: NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70. Here too it is also arguable whether the minister has authority in law to begin an internal disciplinary process. It is also quite aggravating to know that another is acting in that position whilst he is suspended. These reasons motive that there is uncertainty in the completion of the internal disciplinary process because there is no set procedure in place. It is not distinctively set out by the Act. And would be a basis to give leave to review that process adequately. It is therefore satisfied that leave be granted in favour of the plaintiff/applicant to judicially review.
    
14. It would not be against that judicial review is not for busy bodies and the like it is a very restrictive domain and the grounds to invoke by leave are very restrictive and stringent: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909. The balance has been discharged by the plaintiff/applicant here from the discussions set out above. He qualifies that leave be granted for judicial review. He has not delayed in applying since the first defendant made the decision the subject here on the 23^rd November 2020. And this application was filed 30^th November 2020. Effectively there is no delay. The aggregate totality is that leave for judicial review is granted to the applicant for all the reasons set out above.
    
15. The formal orders of the Court are:
    
    • (i) Leave is granted for judicial review.
    • (ii) Plaintiff will file and serve the Substantive Notice of Motion within 14 days as of today 03^rd February 2021.
    • (iii) The matter will be called at the directions hearing of the Court on Monday 1^st March 2021 at 9.30am.
    • (iv) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Solomon Wanis Lawyers: Lawyer for the Plaintiff

Liria Lawyers & Forensic Services: Lawyer for First Defendant

G. Tine Lawyers: Lawyer for the Second & Third Defendants

Office of the Solicitor General: Lawyer for the Fourth Defendant