|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS(JR) NO. 38 OF 2023
BETWEEN:
IPAE MANIHA
Plaintiff
AND:
HON. SIMON SIA, as Governor and Chairman of the Eastern Highlands Provincial Executive Council
First Defendant
AND:
HON. JAMES MARAPE, MP, as Prime Minister and Chairman of the National Executive Council
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Goroka: Mugugia, AJ
2023: 21st & 28th April
JUDICIAL REVIEW – Application for leave – Whether the Plaintiff has sufficient interest for the purposes of Order 16, Rule 3(5) of the National Court Rules – Whether the Plaintiff filed his application for leave within the time limit provided in the National Court Rules - Whether the Plaintiff has an arguable case or has raised serious legal issues to be tried - Whether the Plaintiff has exhausted the administrative avenues available to him before coming to this Court - Whether leave should be granted to the Plaintiff to review the decisions subject of review - Plaintiff does not have an arguable case – Plaintiff did not exhaust the administrative avenue available to him before coming to this Court – Exercise of discretion – Plaintiff’s application for leave refused with costs to the Defendants.
Cases Cited:
Mondiai & Others v. Wawoi Guavi Timber Company Ltd. (2007) SC886
Asakusa v. Kumbakor (2008) N3303
The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Counsel:
Benjamin Nahupa, for the Plaintiff
Richard Yombon, for the First Defendant
Russell Uware, for the Second and Third Defendants
RULING ON LEAVE APPLICATION
28th April, 2023
1. MUGUGIA, AJ: This matter concerns the appointment of the Provincial Administrator of the Eastern Highlands Province. On 1st February 2023, the National Executive Council (NEC) in Decision No: 21/2023 in its Special Meeting No: 03/2023, approved to revoke the appointment of the Plaintiff as Acting Provincial Administrator for the Eastern Highlands Provincial Administration, and appoint Mr Allen Masil Los as the Provincial Administrator for a term of four (4) years, effective on and from the date of the decision. This was gazetted in National Gazette No. G115 (NEC Decision).
2. A month after the NEC decision was made, the Plaintiff’s lawyers filed his originating summons on 3rd March 2023. They then filed their client’s amended originating summons on 12th April 2023.
TWO (2) DECISIONS WHICH ARE SUBJECT OF REVIEW
3. As pleaded in the Plaintiff’s Amended Originating Summons filed on 12th April 2023, he seeks an order for leave to be granted to him to apply for judicial review of the decision of the First Defendant Hon. Simon Sia made on 9th December 2022, to recommend to the NEC for appointment as the Provincial Administrator Mr Allen Los as the first preference, Mr Ipae Maniha as the second preference, and Mr Samson Akunai as the third preference. (First Decision).
4. As stated in the Amended Originating Summons, the Plaintiff seeks an order for leave to be granted to him to apply for judicial review of the decision of the Second Defendant Hon. James Marape made on 1st February 2023, to appoint Mr Allen Los as the Provincial Administrator for the Eastern Highlands Province. (Second Decision).
HEARING OF THE PLAINTIFF’S LEAVE APPLICATION
5. On 21st April 2023, over two months after the NEC decision, the Plaintiff’s lawyer Mr Nahupa moved for leave on behalf of his client. Affidavit materials were filed on behalf of the named parties. The Plaintiff had before the Court his Affidavit in Support filed on 3rd March 2023, and his Supplementary Affidavit filed on 12th April 2023. The State placed before the Court the Affidavit in Response of Allen Masil Los filed on 10th March 2023, and the Affidavit of Russell Uware filed on 20th April 2023. Hon Simon Sia’s lawyer Mr Yombon relied on Mr Allen Masil Los’s affidavit filed on 15th March 2023. Written submissions were provided to assist the Court. The leave application was strenuously contested by the State’s lawyer Mr Uware and Mr Yombon. I heard Counsels’ submissions and reserved my ruling to 28th April 2023, which I now deliver.
REQUIREMENTS FOR LEAVE TO BE SATISFIED BY THE APPLICANT FOR LEAVE
6. When it comes to a leave application, there are four (4) requirements for leave that an applicant for leave is required to satisfy. These 4 requirements are follows:
(a) Sufficient interest.
(b) Undue delay.
(c) Arguable case.
(d) Exhaustion of administrative avenues/remedies.
ISSUES
7. At this leave stage, the pertinent issues for me to determine are:
(i) Whether the Plaintiff has sufficient interest for the purposes of Order 16, Rule 3(5) of the National Court Rules. (Sufficient interest)
(ii) Whether the Plaintiff filed his application for leave within the time limit provided in the National Court Rules. (Undue delay)
(iii) Whether the Plaintiff has an arguable case or has raised serious legal issues to be tried. (Arguable case)
(iv) Whether the Plaintiff has exhausted the administrative avenues available to him before coming to this Court. (Exhaustion of administrative avenues/remedies)
DETERMINATION OF ISSUES
WHETHER THE PLAINTIFF HAS SUFFICIENT INTEREST FOR THE PURPOSES OF ORDER 16, RULE 3(5) OF THE NATIONAL COURT RULES. (SUFFICIENT INTEREST)
8. The submissions by Mr Nahupa on behalf of his client are that there can be no issue as to locus standi because his client was one of the applicants for the position of the Provincial Administrator, and he was the Public Services Commission’s (PEC’s) first preference for the position. He was one of the three candidates considered by the Provincial Executive Counsel (PEC).
9. For the Defendants, Mr Uware submitted that the Plaintiff’s appointment lapsed on 5th April 2023. He does not have the proper standing. Mr Yombon made the same submissions. Similar submission by Counsels is that the Plaintiff does not have a legal interest to protect. In reply, Mr Nahupa submitted that the expiry date of 5th April 2023 is for his acting appointment, not for the permanent appointment which is now before the Court.
10. Order 16, Rule 3(5) of the National Court Rules provides the test. The Court shall not grant leave for judicial review unless it considers that an applicant has a sufficient interest in the matter to which the application relates.
11. The Supreme Court, comprising Kapi C.J., Davani & Lay JJ held in Mondiai & Others v. Wawoi Guavi Timber Company Ltd (2007) SC886 that:
“To determine whether a person has sufficient interest for the purposes of National Court Rules, Order 16, Rule 3(5), the Court should ask:
(a) Is the party complained about a public body?
(b) Does that party have duties to perform at law, i.e., statutory duties?
(c) What is the nature of the alleged breach of duty? Are they duties in law or do they fall within management or administrative guidelines for decisions to be taken within a lawful discretion?
(d) What is the Plaintiff’s relationship to the duties alleged to have been breached?
(i) Are they merely busy bodies?or
(ii) Are they genuinely concerned?
(iii) Do they objectively point to some duty in law which (arguably at the leave stage) has not been observed?”
Finding
12. I have taken note of Mr Nahupa’s further submissions on this requirement in his Amended Extract of Submissions. I have also taken into account the Defendants’ lawyers’ submissions.
13. To determine whether the Plaintiff in the present case has sufficient interest, I take into account the questions formulated in Mondiai & Others v. Wawoi Guavi Timber Company Ltd.
14. What is the nature of the Plaintiff’s complaint? The Plaintiff’s complaint is against the First and Second Defendants. The First Defendant is named as the Chairman of the PEC, and the Second Defendant is named as the Chairman of the NEC. The Plaintiff has not pointed out whether these two individuals have statutory duties to perform at law. In addition, the Plaintiff has not pointed out the nature of the alleged breach or breaches of statutory duty by both of them.
15. I am of the opinion that the Plaintiff is a mere busy body who has come to this Court. He does not have a sufficient interest in the matter to which the application relates. He does not have a legal interest to protect. I find that he has no sufficient interest for the purposes of Order 16, Rule 3(5) of the National Court Rules.
16. This requirement for leave has not been satisfied by the Plaintiff.
WHETHER THE PLAINTIFF FILED HIS APPLICATION FOR LEAVE WITHIN THE TIME LIMIT PROVIDED IN THE NATIONAL COURT RULES. (UNDUE DELAY)
17. Counsels agreed that there was no undue delay.
Finding
18. There was no undue delay. The application for leave was made promptly. I find that the Plaintiff filed his application for leave within the time limit provided in the National Court Rules.
19. This requirement for leave has been satisfied by the Plaintiff.
WHETHER THE PLAINTIFF HAS AN ARGUABLE CASE OR HAS RAISED SERIOUS LEGAL ISSUES TO BE TRIED. (ARGUABLE CASE)
20. Mr Nahupa’s submissions were that his client has an arguable case. The grounds raised by his client in the Statement in Support are very clear. His client was not given sufficient notice. The law involved here is natural justice. His claim arises from Section 59 of the Constitution. The main issues to be determined by the National Court if leave is granted are:
1. Whether the PEC fairly and correctly conducted its meeting of the 9th of December 2022, and whether Mr Allen Los was fairly selected as the PEC’s preferred candidate for the position of Provincial Administrator.
2. Whether the NEC fairly and correctly conducted its meeting of the 1st of February 2023, and whether Mr Allen Los was failrly selected as the Provincial Administrator for the Eastern Highlands Province.
21. The State lawyer raised preliminary objections concerning the Plaintiff’s Statement in Support under Order 16, and the affidavits supporting the leave application. The objection concerning the Statement in Support is that it did not give a clear and concise description of facts, and the statutory and or common law duties alleged to be have been breached. In relation to the affidavits, the submission is that the affidavits are hearsay. Much of the facts are not within the knowledge of the Plaintiff. For this reason, the affidavits should therefore be struck out by the Court. Further submission is that events have overtaken the orders sought by the Plaintiff
22. Mr Yombon adopted the submissions made by the State lawyer. He submitted that the PEC decision is not available to be challenged. The Plaintiff is questioning the decision and not the decision-making process. The Plaintiff does not have a legal interest to protect.
Finding
23. The test which Injia DCJ (as he then was) referred to as the ‘proper and sufficient pleading test’ in Asakusa v. Kumbakor (2008) N3303 is ‘whether the grounds pleaded in the Statement in Support contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached, with reference to established grounds of review which the law recognizes as proper grounds for review’. The proper grounds for review include those specified by statute and subject to the Constitution or any relevant statute. “Ultra vires” (lack of jurisdiction), breach of procedures prescribed by statute or sub-ordinate legislation, and error of law are examples of some proper grounds for review which can be raised.
24. Based on a quick perusal of the materials before me, I am of the view that the application for leave does not present an arguable case. I set out my reasons below.
25. I apply the ‘proper and sufficient pleading test’ here. On a quick perusal of Mr Maniha’s Statement in Support and supporting affidavits, I am of the view that the grounds pleaded in the Statement in Support do not contain a clear and concise description of the specific statutory provision or provisions in the applicable laws which are the Organic Law on Provincial Governments and Local-level Governments and the Public Services (Management)Act or the applicable Regulation alleged to have been breached by Mr Sia and Mr Marape. The Plaintiff did not clearly plead the statutory and procedural roles or duties under the relevant laws or the applicable Regulation that Mr Sia and Mr Marape are alleged to have breached. The Plaintiff did not point to some duty or duties in law which have not been observed by the First and Second Defendants. I find that the grounds raised by the Plaintiff failed to meet the ‘proper and sufficient pleading test’.
26. The main ground raised in the Statement in Support is breach of Section 59 of the Constitution. The allegation is that the recommendation by the PSC was unfairly made. Sufficient notice was not given to the PSC members. The conducting of votes was fraudulent. I find that the Plaintiff’s supporting affidavits do not support this ground.
27. I find that the Plaintiff’s supporting affidavits do not support the grounds pleaded in the Statement in Support. I conclude that the grounds are incompetent and not arguable. The grounds are not meritorious warranting leave to be granted. Based
on documents relied on, the Plaintiff does not have an arguable case.
WHETHER THE PLAINTIFF HAS EXHAUSTED THE ADMINISTRATIVE AVENUES AVAILABLE TO HIM BEFORE COMING TO THIS COURT. (EXHAUSTION OF ADMINISTRATIVE
AVENUES/REMEDIES)
28. Mr Nahupa submitted that his client does not have any other avenue. It is for the Court to interprete the law.
Finding
29. The law is that the applicant for leave must exhaust all the administrative remedies available to him before coming to Court to seek leave for judicial review: See the cases of The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417, and Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122. All available administrative avenues should first be exhausted.
30. The Plaintiff is the Deputy Provincial Administrator – Program Monitoring and Co-ordination of the Eastern Highlands Province.
He is a public servant. The provisions of the Public Services (Management) Act and the Public Services General Orders apply to him.
31. Section 18 of the Public Services (Management) Act makes provision for review of personnel matters connected with the National Public Service by the Public Services Commission. The
Public Services Commission shall, following a complaint made by an officer to the Commission, review a decision on a personnel matter
relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected
by the decision.
32. It is my view that the Plaintiff should have first made a complaint to the Public Services Commission. I find that the requirement of exhaustion of administrative remedies has not been satisfied by the Plaintiff.
CONCLUSION
33. I have found that the application for leave was made promptly. The Plaintiff has not delayed in bringing this proceedings. However, he has not shown that he has sufficient interest in the matter to which the application relates. He has no locus standi to bring the proceedings. The Plaintiff has failed to satisfy this requirement. If an applicant cannot show that he/she has sufficient interest then the Court cannot invoke its powers of judicial review. The Plaintiff has also not shown that he has an arguable case for leave to be granted. He has failed to exhaust the available administrative avenue.
34. In my opinion, the granting of leave will be detrimental to good administration.
35. For the reasons given above, I will refuse the Plaintiff’s application for leave for judicial review.
COURT ORDERS
36. I make the following orders:
1. The Plaintiff’s application for leave to proceed by way of Judicial Review is refused.
2. The Plaintiff shall pay the Defendants’ costs, which are to be taxed if not agreed.
3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.
The Court orders accordingly.
Benjamin Nahupa of Horizon Lawyers: Lawyers for the Plaintiff
Richard Yombon of Setao lawyers: Lawyer for the First Defendant
Office of the Solicitor General: Lawyers for the Second and Third Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/161.html