Wingti v Chairman of the National Executive Council [1997] PGNC 56; N1572 (9 May 1997)

Unreported National Court Decisions

N1572

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. NO. 147 OF 1996
BETWEEN
PAIS WINGTI - GOVERNOR OF WESTERN HIGHLANDS PROVINCIAL AND LOCAL-LEVEL GOVERNMENT - Plaintiff
And
THE CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL - First Defendant
And
DAVID UNAGI - MINISTER FOR PROVINCIAL AFFAIRS & LOCAL-LEVEL GOVERNMENT - Second Defendant
And
THE STATE - Third Defendant

Mount Hagen

Injia J
21 February 1997
9 May 1997

ADMINISTRATIVE LAW - Executive action - Appointment of nominated three (3) members to Interim Provincial Assembly by National Executive Council from list of five (5) persons submitted by Provincial Executive Council to National Executive Council - whether Head of State acting on advice can appoint persons whose names not included on the list - Organic Law on Provincial and Local Level Government (Amendment No. 1), S. 125 (i)(c).

Counsel:

P Koeya for the Plaintiff

No appearance for the Defendants

9 May 1997

INJIA J: This matter was fixed for trial on 21st February 1997 at the Civil Call-Over held on 3rd February 1997. On the dathe trial, the Sohe Solicitor General who acts for the defendants was unable to attend court. Ited leave to the plaintifintiff to proceed ex-parte.

This case involves the application of section 125 (i)(c) of the Orgaaw on Provincial Government and Local Level Government (OLPG & LLG) (Amendment No. 1).& 1). This section provides:

“SECTION 125: COMPOSITION OF INTERIM PROVINCIAL GOVERNMENT

(1) &#1n Interim Provincial Gmel Gment established under Section 123 which succeeds a previous Provincial Government shall coll comprise of:

(c) ټ&#threeons:

(i) ټ #160;&#160&#160  from t comt comprising notg not less than five (5) names of persons submittethe Pcial tive Council concerned; and

(ii) &ـ a60; ap0; appoinppoinppointed bted by the Head of State acting on the advice of the National Executive Council.” (unde mine).

The brhe brief facts are that by letter dated 18th August 1995, the Second Defendant requested the Provincial Executive Council (PEC) headed by the Plaintiff to formally recommend five (5) persons to the National Executive Council (NEC) headed by the First Defendant, of which three (3) persons were to be appointed to the Western Highlands Interim Provincial Assembly. By letter dated 14th September 1995, the plaintiff wrote to the Second Defendant nominating five (5) persons, namely, Mr Tony Kupul, Mr Puap Pokia, Mr Nicholas Wama, Mr Jack Rambok and Mr Jamie Graham. In National Ga No. ated 7ted 7th March 19ch 1996, the defendants caused to be published a notice showing that the Governor General, acting on the a of the National Executive Council, appointed three (3) persons, namely John Kundi, Nicholacholas Wama and Maria Mek to be members of the Western Highlands Interim Provincial Assembly. Only Nas Wama had been recn recommended by the PEC headed by the plaintiff as per letter of 14th September 1995. John Kundi and Mariawere nere not among the five (5) persons nominated by the sEC.

This apparently ntly created some confusion between the parties to these proceedings. On April 1996, in an atteoatteo explain the situation, thn, the Second Defendant wrote to the plaintiff saying that the appointments had been made from a new list mes submitted by the Deputy Governor, who was then the Acti Acting Governor in the absence of the plaintiff who was away from the province. The Second Defendan17;s le;s letter stated in part:

“In due course, the Deputy Governor who was acting Governor during your absence at that time sent a new list with a clear and precise letter detailing all relevant information required for such decision. I wasinced, of course, and, and I went ahead and submitted this list to NEC and it was subsequently endorsed by the Governor General.”

In these proceedings, the plaintiff is disputing the appointment of Maria Mek and John Kundi as being contrary to OLPG & LLG, S. 125 (i)(c).

Mr Peri submits that the NEC breached the mandatory requirements of S. 125 (i)(c) by submitting to the Governor General for appointment, two (2) names which were not included in the list of five (5) names submitted by the PEC on 14th September 1995. It is submitted that for this reason, the appointment of Maria Mek and John Kundi should be declared unlawful and invalid.

I agree with Mr Peri’s submission in respect of the mary requirements of S. 125 (i)(c). The use of the word words “shall” in S. 125 (i)(c) speaks for itself. The NEC caadvice the Head Head of State to appoint any person who is not on the list of five (5) names submitted by the PEC and no apment e made by the Heae Head of State of any person who is not nominated by the PEC and not advi advised of by the NEC.

On the evidence before me, there is evidence of compliance with S. 125 (i)(c) by the PEC headed by the plaintiff, of the PEC resolving to nominate five (5) persons for appointment and submitting a list of five (5) names. On the cry, there is no evno evidence showing that the new list submitted by the Deputy Governor complied with the requirements of S. 125 (i)(c). Although there igesti the the form of the Second Defendant’s letter tter dated 10th April 1996, to show that a new list superceded this previost, there is no mention of the PEC resolving to replace the previous list with the new list list. From the suggestion alone that there was a new list submitted by the Acting Governor, it cannot be concluded that the new list was submitted pursuant to a suent PEC resolution. There is noence that the nthe new list contained the names of fivf five (5) persons’ names. Thereforam not satisfied aied and I cannot find as a matter of fact that the new list complied with the requirements of S. 125 (i)(c).Another point is that S. 125 ( requires the list list to be submitted to the NEC forC for it’s deliberation. As a matteprocedure, the lthe list would be submitted to the Minister for Provincial Affairs and Local Level Government to be tabled in th. As a matter of law, the Minister does not have any power to reject, vary or requestquest for a new list or replace the list, for whatever reason. If he is gone list, he muse must table it before the NEC. If he is given al lists, hts, he must table all of them in the NEC for it’s deliberation and allow the NEC to resolve which list to accept.

For these reasons, I fn favour of the plaintiff and make the following orders as s as sought in the Originating Summons:

(a) ; I declare tha the appoinppointment of John Kundi and Maria Mek as appointed members of the Western Highlands Interim Provincivernmy the of Sand gazetted in the National Gazette No. G18 dated 7th of Marf March, 1ch, 1996 i996 is unls unlawful and therefore null and void.

(b) ; I declare tha the respecespective two (2) offices for which the appointments are declared null and void continue to remain vacant until such time the Head of State makes new appointments to those offices in accordance with section 125 (i)(c) of the Organic Law on Provincial Governments and Local Level Government 1995 from the list of five (5) names submitted by the Western Highlands Provincial Executive Council by it’s letter of 14th September 1995.

I make no order as to costs.

Lawyer for the Plaintiff: Warner Shand Lawyers

Lawyer for the Defendants: Solicitor General