Wapung v Nalle [1997] PGNC 165; N1664 (17 December 1997)

Unreported National Court Decisions

N1664

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S 121 OF 1997
BETWEEN: DAVID WAPUNG – PROVINCIAL TREASURER, SOUTHERN HIGHLANDS PROVINCE
PLAINTIFF
AND: FRANK NALLE
FIRST DEFENDANT
AND: VELE IAMO – DEPUTY SECRETARY, DEPARTMENT OF FINANCE & CHAIRMAN OF SELECTION COMMITTEE
SECOND DEFENDANT
AND: JAMES LOKO – SECRETARY FOR DEPARTMENT OF FINANCE
THIRD DEFENDANT
AND: INDEPENDENT STATE OF PAPUA NEW GUINEA
FOURTH DEFENDANT

Waigani

Sawong J
8 December 1997
17 December 1997

STATE SERVICES - Organic Law on National Provincial and Local Level Governments – Appointment of Provincial Treasurer - S112 –Purported appointment made by another person – Public Service

MANAGEMENT ACT - Re-organisation of a Department – effect of re-organisation on offices – vacancies – Administrative Law– Declarations - Applicant not exhausting administrative review procedure – S18- Public - Service Management Act - Applicant coming to Court - prematurely declaration refused – S18 - Organic Law – Appoint of - Provincial Treasurer – Appointment to be made by Secretary of Finance - Purported appointment made by Selection Committee of Department of Finance – Declared appointment null and void.

Cases Cited

Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

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

Counsel

I. Mileng, for the Plaintiff

P. Ame, for First Defendant

J. Kawi, for Second, Third & Fourth Defendants.

17 December 1997

SAWONG J: By an Originating Summons the Plaintiff is seeking two declaratory orders. The declaration sought are;

(1) That the Plaintiff is the lawfully appointed Provincial Treasurer of the Southern Highlands Province, and

(2) That the appointment of the First Defendant as Provincial Treasurer of the Southern Highlands Province is null and of no effect.

By consent, all parties agreed to rely on the respective affidavits that have been filed. Non of the deponents have been cross examined. All parties also agreed to file written submissions.

This has been done. I have read and considered carefully all the evidence and the submissions.

This application involves the interpretation and application of S112(2) of the Organic Law on Provincial and Local Level Governments (The Organic Law) and various provisions of the Public Service Management Act, (1995 (No.191) 1995)(the Act). At this juncture it is necessary to set out this section in it’s entirely, which reads as follows:

“Subdivision D. – Provincial Treasury

112. ESTABLISHMENT OF PROVINCIAL AND DISTRICT TREASURY

(1) There shall be established in a province an extended service of the National Department responsible for finance matters to be known as the Provincial and District Treasury, to be headed by a Provincial Treasurer.

(2) The Provincial Treasurer shall be appointed by the Department Head of the Department responsible for finance matters after consultation with the Departmental Head of the Department responsible for personnel matters. (my emphasis)

(3) A person shall not be appointed as a Provincial Treasurer unless he is professionally qualified in accounting or economics and has substantial working experience in financial matters or is considered by the Departmental Head of the Department responsible for finance matters to be a suitably qualified person. (Subsection (3) amended by Amendment No.1 Law)

Organic Law on Provincial Governments and Local-Level Governments

(3) The Departmental Head of the Department responsible for finance matters may assign such additional officers and employees as he considers necessary for purposes of adequately carrying out the functions of financial control under this Organic Law and in accordance with an Act of the Parliament. (See: Public Finances (Management Act 1995)

(5) The role of the Provincial and District Treasure is to ensure that public moneys are managed and released strictly in accordance with law.

(6) The Departmental Head of the Department responsible for finance matters shall oversee the affairs of the Provincial and District Treasury.

(7) An Act of the Parliament shall make provision for the specific function, duties and the administrative arrangements of a Provincial and District Treasury. (See: Public Finances (Management) Act 1995)

(8) An Act of the Parliament shall make provision for the management of public moneys in the provinces. (See: Public Finances (Management) Act 1995)”

The evidence for the Plaintiff is contained in his two affidavits. The first affidavit was dated and sworn on 27 March 1997. The second affidavit was dated and sworn 22^nd August 1997.

The Plaintiff says in his evidence that he was properly appointed as the Provincial Treasurer by the Secretary for Finance in accordance with S 112 (2) of Organic Law. He says that his appointment has not been revoked nor suspended.

He is still paid as Provincial Treasurer even after he step aside awaiting the conclusion of this case. He says that as his appointment was neither revoked nor suspended, he is entitled to be declared the Provincial Treasurer.

The first defendant in his evidence, in general, says he was properly appointed and therefore, the declarations sought by the Plaintiff should not be granted. He says that he was properly appointed to the position .

His appointment was conveyed to him in a letter dated 17 October 1996, which was signed by the second Defendant, in his capacity as Chairman of the Department of Finance Selection Committee. He also deposes to other evidence, but I do not consider them to be relevant for the present purposes.

The second defendant says in his evidence that he is the Chairman of the Department of Finance Selection Committee. This committee, is responsible for, amongst other matters, the appointment of Provincial Treasurers. He says that the Committee, after receiving applications for the position of Provincial Treasurer, met, selected and appointed the First Defendant as Provincial Treasurer.

The committee comprised of himself, Mr Kambanei, and Mr Yer, from the Department of Finance, two officers from the Department of Personnel Management and another person.

He does not say when the committee met. He says both the plaintiff and the first Defendant applied for the position.

He then says that the appointment of the Plaintiff was on an acting basis, as an “interim measure pending a permanent appointment”.

The letter of appointment of the First Defendant of 17 October 1991, was signed by the Second Defendant, who was at that time, the Deputy Secretary of Department of Finance.

On the basis of the evidence, I find that the following facts are not in dispute. The Plaintiff was appointed as Provincial Treasurer for the Southern Highlands Province on 19 February 1996. He was so appointed by the then Secretary for Finance, Mr. Rupa Mulina. The appointment was made under s112(2) of the Organic Law. The Plaintiff’s appointment has not been revoked nor suspended.

On or about 13 and 16 August 1996, the Department of Finance caused to be advertised for various positions, including the position of Provincial Treasurer, for various Provinces. Included in the advertisement was an advertisement calling for applications for the Provincial Treasurer’s position in the Southern Highlands.

Eight [8] people, including the plaintiff and the First Defendant applied for that position. At the time of the applications the Plaintiff was employed as Provincial Treasurer, with the Department of Finance in Mendi. At the same time the First Defendant was employed by the Southern Highlands Provincial Government as its Chief Collector of Taxes.

On 8 October 1996, the Selection Committee of the Department of Finance met and considered the applications for the position of Provincial Treasurer (see annexure `A’ to First defendant’s Affidavit).

On 17 October 1996, the Second Defendant wrote and advised the Provincial Administrator the selection and appointment of the First Defendant as Provincial Treasurer.

The letter of appointment of the First Defendant was signed by the Second Defendant, who was then Deputy Secretary of the Department of Finance and was chairman of the Department of Finance’s Selection Committee.

The issue then is, who is the properly appointed Provincial Treasurer. This inturn requires the interpretation and application of S112(2) of the Organic Law and the interpretation of various provisions of the Act, to the facts as I have found.

Counsel for the plaintiff submits that the plaintiff is the properly appointed Provincial Treasure. He advances several reasons.

First, he submits that the power of appointment of a Provincial Treasurer, rests solely with the Secretary for Department of Finance. That power is given by S112(2) of the Organic Law. He says that the plaintiff was duly and properly appointed by the then Finance Secretary.

Mr Mileng submits that, the issue is not whether there was consultation or not before the Plaintiff was appointed. That is not relevant. He submits that it must be presumed that the plaintiff was properly appointed, unless there is contrary credible evidence to suggest otherwise.

There is, he submits, no evidence that consultation did not take place and that in the absence of any such contrary evidence, the Court must infer that such consultation did take place, after which he was appointed.

Mr Ame has made several submission as to why the declarations sought by the Plaintiff ought not to be granted.

Mr Ame has submitted that there is no evidence from the plaintiff that there was any consultation between the Secretary for Finance and the Secretary for Personnel Management, before the Plaintiff was appointed. He submits that in the absence of such evidence, it must be concluded that no consultation took place.

I consider Mr Ame’s submission to be misconceived. Plainly the onus is on his client to produce such evidence. No such evidence has been produced from any of the defendants

I accept Mr Mileng’s submission. There is clearly no evidence to suggest the Court should consider this issue at all. That issue is neither here nor there.

The Organic Law is a Constitutional Law and as such it must be interpreted fairly and liberally. The words of a Constitutional Laws are to be given a fair and liberal meaning and interpretation. See Sch 1.5(2) of the Constitution.

That being the case, upon a fair and liberal reading of S112(2), the meaning is quite clear. The power to appoint a Provincial Treasurer rests solely with the Secretary for Finance. No other persons or committee is empowered to make any appointment. Naturally, before a person is appointed the Secretary for Finance must consult the Secretary of the Department of Personnel Management in order to appoint the most suitable person.

Furthermore one does not expect that both Secretary’s must be personally involved in screening applications and interviewing any applicant, and that some matters would be attended to by other staff, such as the selection committee. However the power of appointment rests with only one person and that is the Secretary of the Department of Finance.

The law has not given any power of appointment to anyone else, be they be any other individual or a group of individuals. In other words the law is quite clear, that the selection committee has no power to appoint a Provincial Treasurer.

Mr Ame has made several submission as to why the declarations sought by the Plaintiff ought not to be granted.

Even then the letter of appointment of the Plaintiff says quite clearly that the appointment was made on the power conferred on him by the provisions of S112(2) of the Organic Law.

This clearly indicates to me that Mr Mulina was aware of the need for consultation before the appointment was made. The submission that has been made cannot be sustained.

Mr Ame has further submitted that as the Department of Finance was re-organised, it affected the position, inter alia, of the Provincial Treasurer. He submits that, as the Department of Finance was re-organised, the provisions of the Act came into effect.

He submits that because the Department of Finance, was re-organised, the offices in particular the offices of, inter alia, the Provincial Treasurer were deemed to be vacant and that the positions or offices were to be advertised. He relied quite heavily on section 33 of the Act. He submits that the plaintiff has not produced any evidence of any gazettal notice that his position had not been affected by the re-organisation.

In view of the submissions raised by Mr Ame, in relation to the various provisions of the Act, I consider it necessary to set these out. The relevant provisions are S20, 22,23 and 33.

These read as follows.

“S.20 DEPARTMENTS OF THE PUBLIC SERVICE

(1) Subject to Subsection (2), there shall be a Department of Personnel Management, and such other Departments are as established under Subsection (2).

(2) The Head of State, acting on advice, may, by notice in the National Gazette:

(a) establish a Department;or

(b) abolish a Department; or

(c) alter the name of a Department (including the Department of Personnel Management).

S.22 DEPARTMENTAL HEADS

The Head of State, acting on advice, may, by notice in the National Gazette:

(a) create an office of Departmental Head; or

(b) abolish an office of Departmental Head; or

(c) alter the designation of an office of Departmental Head.

S23 DELEGATION BY DEPARTMENTAL HEAD

A departmental Head (including the Departmental Head of the Department of Personnel Management) may, in respect of an officer or employee or employees included in a class of officers or employees, by writing under his hand delegate to a person all or any of his powers and functions under this Act (except this power of delegation).

S.33 CREATION AND ABOLITION OF OFFICES.

(1) This section does not apply to an office of Departmental head.

(2) The Departmental Head of the Department of Personnel Management may, in relation to a Department:

(a) create an office and specify the qualifications for, and the duties of, the office; or

(b) abolish an office; or

(c) alter the designation of an office; or

(d) raise the classification of an office; or

(e) lower the classification of an office; or

(f) alter the qualifications for, or the duties of, an office; or

(g) transfer an office from one Department to another Department.

(3) Subject to Subsection (4) and (5), where a Department is re-organised, all offices in the Department are deemed to be vacant and shall be advertised in accordance with this Act.

(4) Where:

(a) a Department is re-organised; and

(b) the re-organisation affects numbers of offices and/or designations of offices or of a class of offices, the Departmental Head of the Department of Personnel Management may, by notice in the National Gazette, deem those offices or classes of offices not to be affected by the re-organisation.

(5) Substantive occupants of offices or classes of offices the subject of a National Gazette notice under Subsection (4) shall retain their offices and such offices shall not be advertised”.

Without going into a comprehensive analysis and examination of these provisions, certain principles appear quite clearly.

It is quite clear that an office of a Departmental Head is to be created by the Head of State acting on advise. It is also clear that such an office may be abolished or altered by the Head of State, acting on advice. (See S20(2). Section 20 does not provide for the appointment of a Departmental Head. A Departmental is not appointed under S21. This is provided elsewhere (see S27)

Section 22 says that the Head of State, acting on advice may create, abolish or alter an office of a Departmental Head

Section 23 authorises a Departmental Head to delegate any of his powers and functions under the provisions of the Act. Such a delegation must be in writing and must be under his signature.

Section 33 is important as it provides the statory basis for the Department of Personnel Management to, inter alia, create, abolish, vary, raise, lower an office. Subsection 3 of S33 is of particular importance to the present case. It provides that where a Department is re-organised, then all offices in that particular Department affected are deemed to be vacant and shall be advertised in accordance with the Act. The advertisement is to be made in accordance with S36(1) of the Act. The advertisement can be made either in the National Gazette or in some other form of advertisement.

The provision of S33 are quite explicit. Subsection 3 is a deeming provision. It is quite clear from that provision that when a Department is re-organised all positions or offices with exception of the Departmental head are deemed to be vacant.

Apart from the Departmental Head, the only other persons not affected by such a re-organisation are those positions or offices, exempted by a notice in the National Gazette in accordance with S33(4) and (5).

Mr Ame submits that when the Department of Finance was re-organised, all the position including that of the Plaintiff became vacant. And when the advertisement was made, calling for applicant, the plaintiff together with others, including the First Defendant then applied for the office of Provincial Treasurer. He says that this goes to support the contention that when the Department was re-organised the position of Provincial Treasurer for the Southern Highlands Province became vacant.

Furthermore, Mr Ame submits that there was no evidence from the plaintiff that he was exempted from the deeming provisions of S33(3) of the Act. This too he says goes to support the contention that he advances.

I accept these submissions. There is no evidence from the plaintiff that he was exempted as required by S33 (4) and (5) of the Act. In the absence such evidence it must be inferred that his position was also affected.

This view is further strengthen by the fact that when the position of Provincial Treasurer was advertised, the plaintiff and some others applied for the position. Why would one apply to or for an office if the position or office was not vacant. It would be illogical to do so. I find that when the Department was re-organised, the positions or offices, including that of the Provincial Treasurer became vacant.

The next issue raised by Mr Ame is that the plaintiff, as a public servant, has not exhausted the public service review procedures as provided for by the Act. Consequently he submits that the proceedings are misconceived and premature and ought to be dismissed.

As I understand his submission, he submits that the combined effort of the relevant and applicable provisions of the Organic Law and the Act must be read together. Once one does that then it would be quite clear that the plaintiff has come to the Court prematurely. He relies on SS 72,109,111,112, of the Organic Law and SS 18 of the Act. Sections 72, 109,111 and 112 of the Organic Law read:

“S.72 PROVINCIAL AND LOCAL-LEVEL ADMINISTRATION SYSTEM

(1) A provincial and local-level administrative system is hereby established

(2) A provincial and local-level administrative system shall consist of:

(a) the administrative institutions consisting of

(i) the offices of Provincial Administrators and District Administrators; and

(ii) an extended service of the National Departments and other agencies; and

(iii) Provincial Government and Local-Level Government support services; and

(Subparagraph (iii) repealed and replaced by Amendment No. 1 Law)

(b) the staffing as set out in Section 75.

(3) There shall be established in each province a Provincial Administrative Headquarters and in each district, a district administrative headquarters.

(4) The boundaries of the district for which each district administrative headquarters is responsible shall be the same as the open electorate of the Parliament in which the headquarters are situated.

S.109 THE ASSIGNED PERSONNEL

The Personnel matter including administrative arrangements relating to:

(a) members of the National Public Service shall be regulated by an Act of the Parliament to be administered by the Departmental Head of the Department responsible for personnel matters and the Public Services Commission, and (See: Public Services (Management) Act 1995)

(b) members of the Teaching Service shall be regulated by an Act of the Parliament to be administered by the Teaching Service Commission, and (See: Teaching Service Act 1988)

(c) other personnel shall be regulated by:

(i) an Act of the Parliament where applicable, or

(ii) A contractual arrangement as governed by the national laws”.

And Section 18 of the Act is important and it reads:

"PART III – REVIEW OF PERSONNEL MATTERS

S.18 REVIEW OF PERSONNEL MATERS CONNECTED WITH THE NATIONAL PUBLIC SERVICE

(1) The Commission shall review a personnel matter connected with the National Public Service either on its own initiative or following a complaint by an officer to the Commission where that officer has been affected by a decision in relation to that personnel matter.

(2) The Commission shall:

(a) complete the review of a personnel matter within 60 days of:

(i) the making of the complaint to the Commission under subsection (1); or

(ii) where the Commission instigates the review, the instigation of the review; and

(b) shall consider whether the decision in relation to the personnel matter was an appropriate decision having regard to the nature of the decision and the views of the officer and of the Departmental Head; and

(c) recommend the confirmation, variation or revocation of the decision in relation to the personnel matter in writing to the Departmental Head and to the Departmental Head of the Department of Personnel Management.

(d) in carrying out a review of a personnel matter the Commission shall determine its own procedures but shall ensure that the views of the office affected by the decision are put before it in relation to the personnel matter either in writing or orally."

Under S18 the Public Service Commission is entrusted with the power to review a personnel matter in relation to a public servant. The review can be done by the Commission either on its own initiative or upon a complaint made to it by an aggrieved officer.

“Personnel matters” means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension, disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise; (see S.1 of the Act)

It is quite obvious that any public servant who is aggrieved by any decision in relation to any personnel matter must go to the Public Service Commission first.

It is trite administrative law that any person aggrieved by any decision must first exhaust all administrative review procedures before coming to Court. See PNG –v- Kapal [1987] PNGLR, 417 Kekedo –v- Burns Philip (PNG) Ltd [1988-89]PNGLR 122.

Mr Ame submits that when the Department of Finance was re-organised the Plaintiff’s position was affected. He was also affected when his application was not successful.

Mr Ame submits that there is no evidence that upon his position and him being affected, the plaintiff took the matter to either the Secretary for Finance or the Public Service Commission for a review. Instead, the evidence shows that the plaintiff proceeded to Court, seeking the orders at the District Court and subsequently before this Court.

As I understand his submission, Mr Ame submits that as the plaintiff has not exhausted the administrative review procedures he has come to this court prematurely.

In the present case, it is quite clear that the plaintiff has not exhausted the alternate administrative review procedures. In other words, there is no evidence that he has sought to review of the decision of Department of Finance for restructuring the department, or the purported appointment of the First Defendant with the Public Service Commission.

There is simply no evidence from the plaintiff that he had done so. Plainly he has not exhausted the statutory administrative remedies available to him. He has come to court prematurely.

Finally, I wish to add that the law is quite clear as to how and who has the power and authority to appoint a Provincial Treasurer. The power of appointment rests solely with the Secretary for Finance. He can delegate his power, but this must be done in writing under his signature.

In the present case there is no evidence that the Secretary of the Department of Finance had delegated his power of appointment to any particular individual person in the Department of Finance. He certainly did not delegate his power of appoint to the Department’s Selection Committee either. It follows that the appointment of the First Defendant by the Selection Committee is invalid. That appointment cannot stand and is therefore null and void.

In so far as question of costs are concerned, I consider that in all the circumstances each party should bear its’ own costs.

For the reasons I have given, I make the following Orders:

(1) I refuse to grant the declaration sought in paragraph 1 of the Originating Summons.

(2) I declare that the First Defendants purported appointment as Provincial Treasurer of the Southern Highlands Province is null and void.

(3) In the circumstances each party is to pay their own costs.

Lawyers for the Plaintiff: Paul Paraka

Lawyer for the First Defendant: Philip Ame

Lawyer for the Second and Third Defendants: Solicitor General