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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO 121 OF 2021
BETWEEN:
WHISPER DIRU in his capacity as
Chairman of PNG Spice Industry Board
Plaintiff
AND:
HON JOHN SIMON
Minister for Agriculture & Livestock
First Defendant
AND:
LEVI BENSON TOVILLIRAN
Second Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Kangwia J
2022: 02nd & 21st November
ADMINISTRATIVE LAW – Judicial review – Minister’s suspension of Chairman of Spice Board by notice to show cause and Gazettal - Retrospective effect of court order to stay suspension – Spice industry Act – No provision for suspension – Requirement of intention to terminate by show cause notice within 14 days – No response – Portfolio minister exercised a power he did not have - Purported suspension while period of contract still remaining – Suspension unlawful void ab initio - Events had overtaken the relevance of claim – Judicial Review granted – Damages awarded.
Cases Cited:
Oil Palm Industry Corporation Board & Ors v Hon John Simon & Ors (2020) N8445
Waguo Goiye v DR. Clement Malau (2011) N4377
Counsel:
J. Issack, for the Plaintiff
K. Kipongi, for the First and Third Defendants
M. Ginyaru, for the Second Respondent
21st November 2022
1. KANGWIA J: This is a judicial review of the decision by the First Defendant to suspend the Plaintiff as Chairman of the Spice Industry Board (Spice Board) as unlawful and unreasonable. Leave was granted on 01 November 2021. The Plaintiff claimed various declarations that the decision of the First Defendant to suspend him was unlawful and unreasonable rendering it null and void. The Plaintiff also claimed damages with costs.
2. The facts giving rise to this review is that the Plaintiff was the Chairman of the Spice Board. On 17 February 2021 by a notice to show cause why he should not be terminated, the First Defendant who was then the portfolio minister suspended the Plaintiff as Chairman upon a petition by the other members of the Board and directed him to remain an ordinary Board Member. The show cause notice gave the Plaintiff 14 days to respond. The Second Defendant who was at that time the Deputy Chairman was appointed acting Chairman. Being aggrieved by that decision the Plaintiff sought Judicial review. Leave was granted on 01 November 2021 with a further order that the grant of leave operated as a stay of the Decision by the Minister. The retrospective effect of the Court Order compounded to confusion already present in the Spice Industry as an organisation. Host of activities emerged from two groups. Appointments to the executive officer of the Spice Board were affected.
3. When this matter came before me on 19 October 2022 there were numerous motions on foot. After argument on which motion should be heard first it was discovered that change in circumstances occurred and events had overtaken the necessity for deliberation of the motions and directions were issued for withdrawal of all motions and set the matter for hearing on 2nd November 2022.
4. This is the decision from the hearing.
5. At the commencement of hearing Mr Issack raised objection to counsel for the 2nd Defendant as improperly appearing as he had not obtained leave of the Attorney General to appear on behalf of the 2nd Defendant who was the Acting Chairman of the Spice Board being a government agency.
6. Mr Ginyaru contended that the application was incompetent and belated as he had been representing the second defendant since the commencement of proceedings and no objection was raised till today.
7. It was also the contention that the application was an abuse of process when the Court directed parties to dispense with motions and proceed with the substantive hearing.
8. Mr Kipongi submitted that the 2nd Defendant was sued in his own personal capacity and did not require authority from the Attorney General.
9. I agreed with counsel for the Defendants that the Second Defendant was sued in his personal capacity and not as acting Chairman of Spice Board and there was no requirement to seek approval from the Attorney General. It was also belated to bar appearance of counsel for the 2nd Defendant who had been acting since the commencement of the proceedings. The motion was denied, and the hearing proceeded with the substantive arguments.
10. This case does not require elaborate consideration of the competing issues raised in submissions of counsel. Events have overtaken the necessity for elaborate consideration.
11. From information before me through submissions and documents relied on by counsel, I restate the undisputed facts this way. The Plaintiff was appointed as a non-ex-officio member of the Spice Board for 3 years effective from 27 March 2019 through National Gazette No G257 of 2nd April 2019. By National Gazette No G277 of 9 April 2019 the Plaintiff was appointed Chairman of the Spice Board for 3 years to be effective from 8 April 2019. The expiry dates of the appointments would be 27 March 2022 and 9 April 2022 respectively.
12. The expiry date of the Plaintiff’s appointment and the legality of the show cause notice is in contention. The Plaintiff says he still had time left on his term of appointment and should be returned to his post because he commenced official duties with the first Board meeting 16 months after taking oath of office on 21 August 2020. The late start of official duties was due to the delay in the notice of appointment and the oath of office. Because his swearing in to commence official duties was conducted on 21 August 2020 this effectively meant that his term of appointment would expire on 21 August 20023.
13. The Plaintiff also says the suspension and termination through the notice to show cause was unlawful as he was appointed by the National Executive Council through the Regulatory Authorities (Appointment of Certain Officers) Act 2004. He referred to the cases of Oil Palm Industry Corporation Board & Ors v Hon John Simon & Ors (2020) N8445 and Waguo Goiye v DR. Clement Malau (2011) N4377 as authorities for that proposition.
14. It was also argued that the notice to show cause was improperly served 6 months after it was issued thereby denying him natural justice.
15. The Defendants say the Minister had the power to issue the show cause notice pursuant to s 7 of the Spice Industry Act. The Plaintiff was not terminated through the notice. By his failure to show cause the self-executing notice took effect but was not executed. The term of his appointment expired on the 3rd anniversary of the date of appointment which was 8 April 2022 and not the day he was sworn in. Therefore, he had no standing to sue.
16. On the late service of the notice to show cause, it was the defendant’s contention that his claim of late service was unverified. Even if he received the notice late as he says, on 13 August 2021, he was not denied the right to be heard. He failed to exercise that right to be heard within the 14 days from service of the notice and came to Court without exhausting the administrative avenues open to him. Therefore, the proceeding should be dismissed as disclosing no cause of action.
17. This is the decision. The Plaintiff was appointed to two different positions on two different dates. The combined effect of the two appointments is that the Plaintiffs Appointment as Chairman on 8 April 2019 superseded his earlier appointment as Non-Ex- Officio member on 27 March 2019.
18. Therefore, the expiry of the appointment as Chairman is deemed as 8 April 2022. The term of appointment did not commence on the day he was sworn in. Swearing the oath of office does not shift the date of appointment to the date the oath is taken.
19. On the same token his commencement of official duties 16 months after the date of appointment does not move forward the date of appointment. The date of appointment stands till the expiry date catches up.
20. Appointments to the Spice Board are subject to the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 pursuant to s 4 (2) (a) of the Spice Industry Act. The relevant parts are:
4. Constitution of the Board.
(1) The Board shall consist of seven members being—
(a) ...
(b) ...
(c) ...
(2) The members referred to in Subsection 1(b) and (c)—
(a) appointed in accordance with the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 from nominations submitted by organizations and bodies that, in the opinion of the Minister, represent the interests of spice growers in the country; and
(b) shall be appointed for a term as specified in Subsection (4); and
(c) are eligible for reappointment.
(3) The Minister shall appoint one of the members to be the Chairman of the Board and the members shall appoint one of their number to be the Deputy Chairman of the Board.
21. The process of appointment can be distinguished from the case of Oil Palm Industries (supra) and Waguo Goye (Supra). The Oil Palm Industries case related to termination of a chairman. The Waguo Goye case referred to employment of people not qualified to be appointed. The present case relates to the suspension of the Plaintiff as Chairman through a notice of intention to terminate.
22. The process of appointment does not apply to suspension and termination of Board members which includes Chairman and Deputy Chairman because they occupy those positions as members first. The Spice Industry Board Act accommodates that aspect of appointment.
23. Under the Act there is no provision for suspension. However, for termination of a board member s 6 and 7 of the Spice Industry Act applies. They are reproduced as follows:
6. Vacation of office by Members.
(1) The Minister shall terminate the appointment of a member if the member-
(a) becomes of unsound mind; or
(b) is convicted of an offence punishable under law by—
(i) death; or
(ii) imprisonment for one year or longer; or
(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of his remuneration for their benefit; or
(d) becomes permanently incapable of performing his duties; or
(e) resigns his office by written notice to the Minister; or
(f) absents himself from three consecutive meetings of the Board without the consent in writing of the Chairman: or
(g) nominates for or is elected to the National Parliament or a Provincial Legislature.
(2) Where a member dies or the appointment of a member is terminated under Subsection (1), the Minister shall, by notice in the National Gazette, declare his office vacant.
7. Termination of appointment.
(1) The Minister may, at any time, by written notice, advise a member that he intends to terminate the appointment of the member on the grounds of inability, inefficiency, incapacity or misbehaviour.
(2) Within 14 days of the receipt of a notice under Subsection (1), the member may reply in writing to the Minister, who shall consider the reply and, where appropriate, terminate the appointment.
(3) Where the member referred to in Subsection (1) does not reply in accordance with Subsection (2), his appointment is terminated.
(4) Where the appointment of a member is terminated under this section, the Minister shall, by notice in the National Gazette, declare his office vacant.
24. There is no requirement that the terminations of appointments are subject to the Regulatory Statutory Authorities (Appointment to Certain Offices) Act. The only requirement is that the Minister upon termination declares the office vacant through the National Gazette pursuant to s 7 (4).
25. In the present case the portfolio minister by letter dated 17 February 2021 pursuant to powers he had under s 7(1) of the Spice Industry Act issued a notice of intention to terminate under the auspices of a notice to show cause and suspension of chairmanship. The Minister’s notice to show cause is plain to see. The Plaintiff’s Chairmanship to the PNG Spice Industry Board was suspended.
26. That decision was erroneous and without legal basis. Suspension per se is not recognised by s 7 of the spice Industry Act. The Minister had no power to suspend pending a reply within the prescribed 14 days’ notice period. The 14 days was in my view a grace period for the Plaintiff to stay at work and make a reply. 27. If the legislature had intended suspension to be a part of the disciplinary process it would have legislated it as such. In the present case the notice of intention to terminate operated as a suspension through the decision of the Minister. That is the wrong interpretation and application of s 7 of the Spice Industry Act. The portfolio minister erred when he made the decision to suspend the Plaintiff, a power, he did not lawfully have under the Spice Industry Act. The purported suspension of the Plaintiff as Chairman was unlawful.
28. Going further, through National Gazette No G128 of 2021 the portfolio minister again suspended the appointment of the Plaintiff as Chairman and simultaneously appointed the 2nd Defendant as acting Chairman. The suspension was stated to be by virtue of powers conferred on the Minister by s 4 (3) and s 7 of the Spice Industry Act. The notice of the Minister in the National Gazette is a misconception and legally flawed.
29. The provisions purportedly relied on do not confer powers on the Minister to suspend the appointment of a member or the Chairman. Section 4 (3) confers on the Minister the power to appoint one of the members to be the Chairman of the Board. That provision does not extend to suspensions or termination. Section 7 on the other hand confers on the Minister the power to terminate an appointment of a member. It does not give him any alternate power to suspend.
30. Therefore, the notice to suspend the Plaintiff by the portfolio minister in the National Gazette No G128 of 2021 was unlawful and void ab initio. Likewise, the decision to appoint an acting Chairman simultaneously was wrong in law. The safe period to appoint an acting Chairman was after the 14 days lapsed without any reply from the Plaintiff.
31. The undisputed fact is that the notice to show cause was issued on 17 February 2021 and the 14 days grace period lapsed on 3 March 2021. The Plaintiff admitted through his affidavit that he could not show cause because the Notice to show cause was not properly served on him. It was served via email on 13 August 2021.
32. The claim of late service was unverified.
33. What is intriguing is how the Plaintiff was unaware of the notice to show cause for 6 months and kept performing his duties parallel to the purported acting Chairman. He was aware of what he called an illegal meeting of the members of the Board in Lae held on 17 February 2021 which was the same day the Minister issued the notice against him. He reacted to the meeting by writing to all the board members that the meeting was illegal and would not sign the meeting minutes or recognise them as proper meetings. The purported illegal meeting did not trigger any concern by the Plaintiff. A prudent man whose powers and authority are undermined by others who don’t have such authority would do all that is necessary to find out why, how or what the situation is. If he had done that, he would have discovered the decision against him earlier. He failed in this regard.
34. Despite that there is no evidence that proper service of the notice was given. There is an element of a discreet operation. The Plaintiff was denied the right to be heard. It is not good enough to suggest that the notice was advertised in the National Gazette. The denial of his right to be heard operates in the Plaintiff’s favour even though the application for leave was inordinate.
35. Apart from his suspension there is no evidence of a termination after the 14 days lapsed. No notice was published in the National Gazette of a vacancy in the office of Chairman pursuant to s 7 (4) of the Spice Industry Act. His right to be heard was not yet extinguished.
36. The Plaintiff was entitled to form the view that the time for reply had lapsed, and it served no useful purpose to reply given the self-executing provision of s 7. He was entitled to a legitimate presumption that his suspension was unlawful. He had no other option but to seek judicial review. Under these circumstances it is safe to hold that the Plaintiff did not fail to exhaust administrative remedies available to him.
37. The Plaintiff has satisfactorily established that the decision of the portfolio minister to suspend him in a notice of intention to terminate was unlawful void and of no effect.
38. The question now is whether he is entitled to the relief claimed.
39. At the hearing counsel were in general agreement that circumstances have changed since the decision of the Minister was challenged in Court. When the Minister made the decision to suspend him on 17 February 2021, he still had some time remaining in his appointment as Chairman because it was to expire on 8 April 2022.
40. After the lapse of 14 days statutory period there was no evidence of termination. The requirement under s 7 (4) is that by a termination a vacancy exists. That vacancy must be notified in the National Gazette. In the absence of the termination notice the plaintiff is deemed to have been employed hence, standing to sue.
41. He commenced judicial review proceedings on 31 August 2021 which was 6 months after his purported suspension. While the judicial review was pending his appointment as Chairman expired on 8 April 2022. The cumulative effect is that the purported suspension and the Judicial review proceedings occurred while he still had time remaining in his appointment and he had standing to sue.
42. In the Order 16 statements the Plaintiff sought various declarations, damages and costs. By the decision upon judicial review that the Portfolio Minister’s decision to suspend the Plaintiff as Chairman of the Spice Board was unlawful, null and void it extinguishes all declarations sought.
43. The next relief remaining to be determined is damages. Claims for damages in an application for judicial review is guided by order 16 rule 7 of the National Court Rules as follows:
7. Claim for damages.
(1) On an application for judicial review the Court may, subject to Sub-rule (2), award damages to the applicant if —
(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.
44. The Plaintiff claimed damages in the order 16 statement supporting the application for leave. The requirement under Order 7 rule (2) (a) has been satisfied for an award of damages. He still had time left on his term of appointment. If damages had been claimed for time remaining in his term of appointment, he could have been awarded damages.
45. In view of those considerations the Plaintiff’s remedy lay in damages for a purported suspension that is clearly unlawful and void ab initio. As to costs it is an exercise of discretion. Costs should also be awarded if favour of the Plaintiff.
46. The formal orders are:
________________________________________________________________
Lawama Lawyers: Lawyers for the Plaintiff
Ginyaru Lawyers: Lawyers for the Second Defendant
Solicitor General: Lawyers for the First & Fourth Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2022/615.html