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Yakasa v Kulunga [2012] PGNC 1; N4550 (25 January 2012)

N4550


PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE


OS 958 OF 2011


BETWEEN:


FRED YAKASA
Plaintiff


AND:


TOAMI KULUNGA
First Defendant


AND:


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Davani, J
2012: 16th, 25th January


PRACTISE AND PROCEDURE – Application to join proceedings – Application to amend Originating Summons - Return of Interim Injunctive Orders – Court to properly exercise judicial discretion – Section 155(3)(a)(b) of the Constitution.


SUPREME COURT – Supreme Court decision – amendment to legislation – amendments with retrospective effect – amendments affect Supreme Court decision - whether the Supreme Court decision is binding – whether amended legislation is valid - Prime Minister and National Executive Council Act 2002 (as amended).


CONSTITUTION – National Court's powers – obvious conflict in Supreme Court decision and legislation – conflict raises questions of law – Reservation for Supreme Court – Section 15 of Supreme Court Act.


Facts


The plaintiff seeks Declarations that he is the lawfully appointed Police Commissioner. However, the first defendant says he is the lawfully appointed Police Commissioner. The plaintiff relies on appointment made by the Somare Government. The first defendant relies on appointment made by the O'Neill Government. The Somare Government's actions, are based on decision by the Supreme Court in SCR 3 of 2011 whereas the O'Neill Government claims to be the legitimate Government relying on amendments to the Prime Minister and National Executive Council Act 2002 (as amended) where the amendments declare, amongst others, that there is a vacancy in the Office of the Prime Minister, as at 2nd August, 2011, and the amendments were made retrospective to 1st January, 2011.


The Court had to determine several applications before it which were;


  1. The extension of Interim Restraining Orders.
  2. Application to join the proceedings by Peter O'Neill and the National Executive Council; and Jeffrey Nape Speaker of Parliament.
  3. Application by the plaintiff to amend the proceedings.
  4. Application to dismiss the proceedings for lack of Section 5 Notice under the Claims By and Against the State Act ('CBASA').

Issues


  1. In relation to the application to amend the Originating Summons, the Court considered whether the amendments will determine, amongst others, the real question in controversy between the parties and that the amendments show that there are serious questions to be tried.
  2. In relation to the applications to join, the Court considered whether the joinder will determine;
  3. In relation to the extension of the Interim Injunctive Orders, amongst others, that the status quo will be maintained.
  4. In relation to the application to dismiss proceedings, that Section 5 did not apply to proceedings commenced by Originating Summons.
  5. As to the Court's powers to decide on the substantive proceedings;

Reasons


The Court held that these issues are best answered by a Reservation under Section 15 of the Supreme Court Act. The questions to be referred to the Supreme Court are;


  1. Whether the Supreme Court decision in Haiveta v. Wingti (No.3) [1994] PNGLR 197 and SCR No. 3 of 2011 gives the National Court the power to;

1(1) Call evidence in proceedings that eventuated in Parliament in relation to the election of Peter O'Neill as Prime Minister and to address the issue of the non-justiciabity or not of these proceedings as provided in s.134 of the Constitution.


1(2) If the National Court can call evidence to then address whether Mr O'Neill was elected "on the next sitting day" as provided in s.142(4) of the Constitution.


  1. If the National Court finds that the O'Neil Government did not sit "on the next sitting day", or did sit "on the next sitting day", for the National Court to then proceed to consider and make findings as to who actually represents or is the Independent State of Papua New Guinea, the entity.
  2. Having found who represents the Independent State of Papua New Guinea, to then rule on the validity of the amendments to the Prime Minister and National Executive Council Act 2002 (as amended).
  3. Thereafter, to then call evidence and deliberate on the substantive action before the National Court.
  4. If the Supreme Court finds that the National Court does not have the power to make these findings, for the Supreme Court to assume that role and to make the findings sought in para. nos. 1(1), 1(2), 2, 3 and 4 herein.
  5. Having made those findings, for the Supreme Court to then issue directions in relation to the conduct of the substantive proceedings before the National Court.

Cases


Haiveta v. Wingti (No. 3) [1994] PNGLR 197
AGC (Pacific) Ltd v. Sir Albert Kipalan & ors (2000) N1944
Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2273
Emapi Luna Pakomeyu v. James Siai Wamo (2004) N2718
Maps Tuna Ltd v. Manus Provincial Government (2005) N2867
PNG International Hotels Pty Ltd & anor v. The Registrar of Land Titles and ors (2007) N2307
Maps Tuna Ltd v. Manus Provincial Government (2007) SC857
Isaac Lupari v. Sir Michael Somare, MP, Prime Minister and Chairman of the National Executive Council and The Independent State of Papua New Guinea (2008) SC930
The State v. Manoburn Earthmoving Ltd (2008) PGSC 21 SC933
Konze Kara v. Public Curator of PNG (2010) N4048
SCR 03 of 2011, Special Reference by the East Sepik Provincial Government


Counsel:


D. Dotaona, for the Plaintiff
A. Kimbu and M. Parua, for the First Defendant
L. Henao and W. Bigi, for the Second Defendant
P. Wright, for Sir Arnold Amet, Applicant to Join
T. Twivey, for the Speaker of Parliament, Jeffrey Nape, Applicant to Join
M Wilson, for Peter O'Neill and the National Executive Council, Applicants to Join


DECISION

25th January, 2012


  1. DAVANI, J: Fred Yakasa, the plaintiff/applicant ('plaintiff') comes to Court to extend Interim Ex parte Restraining Orders he took out on 16th December, 2011. He is also here to oppose Applications to Join filed by several persons and entities which I will set out below.
  2. Another application that he seeks to move is one seeking leave of this Court to amend his Originating Summons filed by Dotaona Lawyers on 16th December, 2011.
  3. Because there were several applications before me, I dealt with all applications in such a way where the lawyers on record proceeded before the lawyers involved in the Applications to Join.
  4. I also state for the record that those aligned with either Peter O'Neill or Sir Michael Somare and who now appear before me as counsel, will be referred to in this decision as representing the 'Somare Government' and the 'O'Neill Government'.

Background


  1. Before I mention the applications before the Court, I will set out below the important factual background from which these applications emanate.
  2. On the evening of 16th December, 2011, the plaintiff applied ex parte for orders restraining the first defendant and his servants and agents from arresting him and his servants and agents and to also order, that they not be prevented from performing their duties and functions as policemen. These orders read:

"1. Pursuant to Order 1 rule 7 of the National Court Rules, an order that the requirements for service be dispensed with and that this application proceed ex parte.


  1. An interim injunction until trial or further order restraining the defendants and their servants and agents and whosoever they may be described from arresting, harassing, intimidating, approaching, hindering, or interfering with the plaintiff, his servants and servant and agents, subordinate and commanders from performing their duties and functions as policemen under the Constitution and the Police Act 1998.
  2. Matter returnable tomorrow for ex parte hearing at 9:30am."
  3. On 17th December, 2011, the plaintiff and his lawyer applied ex parte for an extension of the orders of 16th December, 2011. The plaintiff's counsel made submissions on the orders sought in relation to the Interim Injunctive Orders and which orders were granted. These orders read:

"1. The Interim Orders of 16 December 2011 are extended and are made returnable on Friday, 23 December 2011 at 1:30 pm.


  1. The plaintiff through his lawyers will serve all documentation filed in these proceedings including this order and the order of 16 December 2011 on all the defendants.
  2. On the return date of 23 December 2011, the plaintiff will move for orders in relation to the balance of the Motion filed on 16 December 2011.
  3. The plaintiff is at liberty to make application earlier than 23 December 2011 in the event circumstances arise that prompt him to do so.
  4. That time of entry be abridged to the time of settlement by the Registrar which shall take place forthwith."
  5. On 23rd December, 2011, all parties were represented by their respective lawyers. However, the matter was adjourned because the second defendant requested that time be given to it to file affidavits in response.
  6. The Court then adjourned to 27th December, 2011 and at the same time, extended the Interim Restraining Orders.
  7. On 27th December, 2011, the lawyer for the named second defendant State, Mr Bigi of Henaos Lawyers, indicated that he wished to file an application under s.5 of the Claims By and Against the State Act. Mr Dotaona for the plaintiff also informed the Court that he had yet to serve the application to amend on all named defendants. Mr Wilson of Warner Shand Lawyers for Peter O'Neill and the National Executive Council, appeared for the first time and informed the Court that he would file an application to join. Ms Kimbu of Parua Lawyers appeared for the named first defendant, Mr Toami Kulunga.
  8. Noting the position taken by all counsel, I directed that all parties discuss the possibility of consenting to orders.
  9. I also informed Henaos Lawyers and Parua Lawyers to ensure that the correct Notices of Intention to Defend were filed and to withdraw the original Notices of Intention to Defend. I stated this because I noted that Parua Lawyers had pleaded in their Notice of Intention to Defend that they were acting for both Mr Kulunga and The State. I noted later, that all counsel corrected this anomaly and re-filed the correct Notices of Intention to Defend.
  10. On 12th January, 2012, several new counsel appeared in Court. They were Ms Twivey, applicant to join Speaker of Parliament; and P. Wright for applicant to join Sir Arnold Amet, in his capacity as Attorney-General representing the Somare Government.
  11. My Associate brought to my attention a letter from Dotaona Lawyers dated 12th January, 2012, which letter advised that both his client and him had been threatened and prevented by police from entering the Court premises. I read this letter to all parties in Court, then directed that Mr Kulunga, the named first defendant, appear and explain whether there was any truth in these allegations. After a short adjournment, Mr Kulunga appeared. I enquired as to whether there were in fact threats to arrest and action taken to arrest the plaintiff and his lawyer. Mr Kulunga gave me the assurance that there were no such steps and no steps had been taken to arrest Mr Yakasa.
  12. Because both the plaintiff and his lawyer were not in Court, I then adjourned to Friday, 13th January, 2012.
  13. On 13th January, 2012, all counsel for parties named in the proceedings were in Court. Also in Court, were the lawyers intending to join the proceedings.
  14. Mr Dotaona informed the Court that he was not in a position to move the application to amend because he had not served Parua Lawyers, the lawyers for the named first defendant. This was also because he had served on Posman Kua Aisi Lawyers, the lawyer for Sir Arnold Amet, applicant to join the proceedings as Attorney-General. Although Mr Henao for the second defendant insisted that the Court hear the application to join and the application to amend, I directed that I will hear all applications after the plaintiff's lawyer had effected service of the application to amend upon the named defendants.
  15. I directed that all the applications be adjourned to Monday, 16th January, 2012 at 9:30am, to be moved.
  16. On 16th January, 2012, I noted again that Mr Dotaona and his client were not in Court. Upon enquiries, I learnt that Mr Dotaona could not appear because of the fear that he may be arrested by armed policemen manning the roadblocks on the road leading up to the Court House. It was then that I directed Ms Parua and Ms Kimbu to inform their client Mr Kulunga, to direct the armed policemen to remove the barricades and to leave the public street as their presence was obviously hindering and obstructing the movement of people to and from the Court House including Mr Dotaona and his client.
  17. The Court adjourned for about ½ hour during which time the barricades were removed. The armed policemen also left. Mr Dotaona appeared in Court and all lawyers then moved their applications.

Order of Applications


  1. Below are the applications which were moved by counsel for the named parties and by those who had indicated their intentions to join the proceedings. I set out below the order in which I dealt with those applications.
No.
Application
Filed by
Order of hearing
Firms heard
1.
Motion to Amend Originating Summons filed on 16th December, 2011
Dotaona Lawyers
First Motion moved
Dotaona Lawyers, Parua Lawyers, Henaos Lawyers
2.
Return of Interim Injunctive Orders dated 16th December, 2011
Dotaona Lawyers
Second Motion moved
Dotaona Lawyers, Parua Lawyers, Henaos Lawyers
3.
Motion to dismiss proceedings for lack of s.5 Notice filed on 29th December, 2011
Henaos Lawyers
Third Motion moved
Dotaona Lawyers, Parua Lawyers, Henaos Lawyers
4.
Amended Notice of Motion filed on 11th January, 2012 to join Jeffrey Nape, Speaker of Parliament, which Motion also seeks other orders.
Twivey Lawyers
Fourth Motion moved
Twivey Lawyers, Parua Lawyers, Henaos Lawyers, Dotaona Lawyers
5.
Motion filed on 13th January, 2012 seeking to join Peter O'Neill and Members of the National Executive Council
Warner Shand Lawyers
Fifth Motion moved
Warner Shand Lawyers, Parua Lawyers, Henaos Lawyers, Dotaona Lawyers
6.
Motion filed on 12th January, 2012 seeking to join Sir Arnold Amet in his capacity as Attorney-General representing the Somare Government.
Posman Kua Aisi Lawyers
Sixth Motion moved
Posman Kua Aisi Lawyers withdrew their Motion to join, with leave of the Court. They intend to file another Motion.
7.
Notice of Motion for Stay and other directions filed on 13th January, 2012 for and on behalf of Dr Allan Marat, in his capacity as Attorney-General representing the O'Neill Government, for stay of OS 958 of 2011 pending the hearing of SCR 01 of 2012
Twivey Lawyers
Defer hearing of Motion until after decision on application to join, application to amend and lack of s.5 Notice application
Motion was not moved.
8.
Application for Stay filed in SCR 01 of 2012 for and on behalf of Dr Allan Marat, MP for stay of OS 958 of 2011 and OS 977 of 2011
Twivey Lawyers
Defer, pending decision on all National Court applications.
Parties to be advised.
Motion was not moved.
  1. Having made known my position in relation to the hearing of all the applications, all counsel then moved their applications which I heard and then adjourned for decision. The only applications not moved were the stay applications filed by Twivey Lawyers in SCR 01 of 2012 and also in these proceedings. I directed that this would be heard after decision in this matter and that parties would be advised. However, I am aware that Twivey Lawyers are now in the process of moving this application before another Judge.
  2. Also, Posman Kua Aisi Lawyers withdrew their application seeking leave to have Sir Arnold Amet join the proceedings. At the date of hearing, it is not known when Posman Kua Aisi Lawyers will re-file, although they indicated they would be filing another application. However, that should not delay delivery of my decision in this matter considering its importance.

Important facts relied on by named parties


  1. What was argued before me were generally the possible extension of the interim ex parte restraining orders until the hearing of the substantive proceedings and the application for leave to amend the Originating Summons filed by Dotaona Lawyers. The substantive proceedings are the Originating Summons that were filed on 16th December, 2011 by Dotaona Lawyers.
  2. Also argued, were the applications to join and the application for lack of s.5 Notice.
  3. In the Originating Summons, the plaintiff seeks Declarations that;

(ii) The first defendant's appointment as Commissioner of Police was revoked pursuant to Gazettal Notice No. G390 dated 31st December 2011.


(iii) That the Supreme Court's Orders of 12th December, 2011 are lawful and subsisting;


(iv) That the Supreme Court's Orders of 12th December, 2011 saw Sir Michael Somare restored to the office of the Prime Minister and remains so to the present;


(v) That pursuant to the Orders of 12th December, 2011, that Sir Michael Somare appointed the plaintiff as Acting Commissioner of Police;


(vi) That any purported revocation of the plaintiff's appointment thereafter by persons other than Sir Michael Somare's Government, is null and void and of no legal effect.


  1. The first defendant on the other hand, states that he is the lawfully appointed Police Commissioner.
  2. He relies on Gazettal Notice No. G390 dated 20th November, 2011 where his appointment as Acting Commissioner of Police (Operations) was revoked and he was appointed and confirmed as the Commissioner of Police and Departmental Head of the Department of Police.
  3. He deposes further that Chief Superintendent Fred Yakasa's appointment as Acting Deputy Commissioner (Operations) was revoked and in his place, Assistant Commissioner Simon Kauba was appointed as Acting Assistant Commissioner (Operations). These appointments were advertised in the Gazettal Notice No. G339 of 28th November, 2011.
  4. The evidence before me is that the plaintiff did pursue his appointment by way of Judicial Review against Prime Minister Peter O'Neill and the National Executive Council, seeking review of the revocation of his appointment as Acting Deputy Commissioner (Operations) and his transfer to Bougainville as Assistant Commissioner for Bougainville Police Service, appointment made by Mr Kulunga, first defendant, in his capacity as Commissioner of Police appointed by the O'Neill Government.
  5. The evidence is that the substantive hearing of the Judicial Review was heard inter-parties on 7th December, 2011. Decision was reserved and on 8th December, 2011, Justice Manuhu refused the plaintiff's application for Judicial Review.
  6. By National Gazettal Notice No. G363 dated 9th December, 2011, the O'Neill Government declared the East Sepik Provincial Seat held by Sir Michael Somare as vacant. This was published in National Gazettal Notice No. G363 dated 9th December, 2011.
  7. On 12th December, 2011, the Supreme Court handed its decision down in the East Sepik Provincial Government Reference SCR 03 of 2011, resulting in the Supreme Court reinstating Sir Michael Somare as the Prime Minister after finding, amongst others, that there was no vacancy in the office of the Prime Minister.
  8. On 12th December, 2011, the standing orders were suspended and a Bill, being the Prime Minister and National Executive Council (Amendment) Bill 2011, was passed through Parliament, which effectively amended the Prime Minister and National Executive Council (Amendment) Act 2002 providing a time limit for an Acting Prime Minister to be in office. The amendments provided that should a Prime Minister return to resume his position within three (3) months of the appointment of the Acting Prime Minister, a vacancy in the office of the Prime Minister would occur. These amendments were made retrospective to 1st January, 2011.
  9. The Speaker of Parliament certified the Prime Minister and National Executive Council (Amendment) Act 2011 on 12th December, 2011. It is necessary that I set out in full the Bill which contains the amendments. It reads;

"A Bill


for


AN ACT


Entitled


Prime Minister and National Executive Council (Amendment) Act 2011


Being an Act to amend the Prime Minister and National Executive Council Act 2002,


MADE by the National Parliament.


  1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS
(1) This Act, to the extent that it regulates or restricts a right or freedom referred to in subdivision III.3.C (Qualified Rights) of the Constitution, namely –

is a law that is made for the purpose of giving effect to the public interest in public order and public welfare.


  1. AMENDMENT OF LONG TITLE

The Long Title to the Principal Act is amended in Paragraph (a) by adding after Subparagraph (ii) the following new subparagraph:-


"(iii) time limits on and the duration of appointment of an Acting Prime Minister pursuant to Section 143(1) of the Constitution when the Prime Minister is absent from the country; and"


  1. ACTING PRIME MINISTER (AMENDMENT OF SECTION 4)

Section 4 of the Principal Act is amended by adding after Subsection (2), the following new subsection:-


"(3) After the appointment of a Minister to be Acting Prime Minister is made pursuant to Section 143(1)(c)(i) of the Constitution when the Prime Minister is absent from the country:-


(a) in the event that the Prime Minister does not return to the country and resume office within 3 months of the appointment of an Acting Prime Minister, the appointment shall cease and the office of the Prime Minister shall be deemed vacant; and

(b) the Speaker of the Parliament shall inform the Parliament of the vacancy in the office of Prime Minister arising under Paragraph (a) and a new Prime Minister shall be appointed in accordance with Section 142 of the Constitution."
  1. SUSPENSION FROM OFFICE OF THE PRIME MINISTER (AMENDMENT OF SECTION 6)

Section 6 of the Principal Act is amended by adding after Subjection (1) the following new subsection:-


"(1A) The medical practitioners referred to in Subsection (1) may provide a joint report and certification of matters referred to in Subsection (1) to the Head of State without conducting any physical examination of the Prime Minister, if in the professional opinion of the medical practitioners, a credible medical report and certification is capable of being provided from other medical reports and clinical records from both local and overseas medical practitioners who have examined and treated the Prime Minister."


  1. COMMNENCEMENT OF SECTIONS 2, 3 AND 4

Sections 2, 3 and 4 of this Act shall be deemed to have come into operation and at all times to have had effect on and from 1st January, 2011.


  1. VALIDATION OF ELECTION OF PRIME MINISTER

For the avoidance of doubt and by virtue of the powers conferred by Sections 2, 3 and 4 of this Act, it is hereby declared that:-


(a) the declaration by the Speaker of Parliament on 2 August, 2011 and there was a vacancy in the office of the Prime Minister, is not unlawful but is valid and effective and shall be treated, by virtue of Sections 3 and 4 of this Act, as having been lawfully and validly declared effective from the time it was declared; and

(b) the decision of Parliament on 2 August, 2011 that there was a vacancy in the office of Prime Minister is valid and effective, and shall be treated by virtue of Sections 3 and 4 of this Act, as having been validly decided from the time it was decided; and

(c) the election by Parliament of a new Prime Minister Peter O'Neill on 2 August, 2011 is valid and effective and shall be treated by virtue of Sections 3 and 4 of this Act, as having been validly elected from the time the new Prime Minister Peter O'Neill was elected."
  1. It was during this period of time that on 13th December, 2011, the Somare Government appointed the plaintiff as the Acting Police Commissioner by National Gazettal Notice No. G390 dated 13th December, 2011.
  2. By National Gazettal Notice No. G376 dated 14th December, 2011, the Acting Governor-General Jeffrey Nape with advice from the National Executive Council, appointed Mr Peter O'Neill as Prime Minister, Belden Namah as Deputy Prime Minister and dismissed the Somare led Members of Parliament from Office. Several other Ministers within the O'Neill Camp were appointed as Ministers.
  3. By National Gazettal Notice No. G377 dated 15th December, 2011, the O'Neill Government revoked the plaintiff's appointment as Acting Commissioner of Police and reinstated the first defendant as Commissioner of Police.

Common issues raised by all parties in their applications


(i) Application to amend
  1. The named defendants oppose the application to amend the Originating Summons moved by the plaintiff.
  2. The first defendant submits amongst others that leave should not be granted because the plaintiff relies on an incorrect provision of the National Court Rules. They also submit that the plaintiff's proposed amendments raise a completely new issue, not related to the original proceedings on foot. Henaos Lawyers for the named second defendant also made similar submissions stating that the plaintiff is claiming or seeking leave to bring in a new cause of action, which is prohibited by established principles in relation to applications to amend.
  3. The first and second defendants submit that by the original Originating Summons, the plaintiff seeks Declaratory Orders that he was the Acting Commissioner of Police and not the first defendant. In the present proposed Amended Originating Summons, the plaintiff asks that the Supreme Court's Orders of 12th December, 2011 in SCR 03 of 2011 are lawful and subsisting, The plaintiff seeks in the proposed amended Originating Summons, that:
  4. Both Ms Kimbu and Mr Henao for the first and second defendants raise a very pertinent point which is that the Amended Originating Summons now raises the issue of the legitimacy of both the O'Neill and the Somare Government. They submit that this is a new issue and is not related to the proceedings on foot and therefore the application must be dismissed.
  5. They submit that the proposed amendment do not correct any defect or error as was done in Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2273.
  6. Of course, the Common Law principles which any Court must consider when determining an application to amend are the following;
  7. It goes without saying that the present two (2) Police Commissioners are in office based on appointments done by the Somare Government and the O'Neill Government. The Somare Government relies on the Supreme Court's decision in SCR 03 of 2011 that it is the legitimate Government. The O'Neill Government relies on the amendments to the Prime Minister and National Executive Council Act 2002 which declared amongst others that, as at 2nd August, 2011, there was a vacancy in the office of the Prime Minister and that the election of Peter O'Neill as Prime Minister on 2nd August, 2011, is valid and effective, such amendments being retrospective to 1st January, 2011.
  8. Will the proposed amendments determine the real question in controversy between the parties? And of course, what is the real question in controversy between the parties?
  9. It goes without saying that both the plaintiff and the first defendant are adversely affected by the recent events that I referred to above. The plaintiff believes very strongly that the Supreme Court's decision is binding. Whereas the first defendant, relying on actions taken by the O'Neil Government in amendments to the Prime Minister and National Executive Council Act 2002 and representations made by the O'Neill Government that it is the legitimate government of the day, also believes strongly that his appointment as the Commissioner of Police was legitimately done.
  10. So, who is correct?
  11. I should state at this time that Fred Yakasa and Toami Kulunga are not the only career public servants who have been affected by these recent events. Other career public servants who have also filed applications, which are pending before this Court are Gabriel Yer and Hudson Ramatlap. Another related proceeding is that filed by Graham Osborne.
  12. As for the defendants' submissions that this is a different cause of action altogether, I must remind counsel that a cause of action is only pleaded in a Writ of Summons and Statement of Claim, not an Originating Summons. Proceedings in such claims usually involve questions of law rather than controversial questions of fact. The National Court Rules are very specific that proceedings in which the sole or principal question is or is likely to be one of the construction of an Act or of any instrument at all or in which there is unlikely to be a substantial dispute of fact, must be commenced by Originating Summons (O.4 r.3(2)).
  13. In this case, the appropriate made of proceedings is obviously by Judicial Review as it involves matters of public law. But I can understand the very serious predicament the plaintiff's lawyer was in when he filed these proceedings which was, as he submitted when I raised the question in Court on what was the appropriate mode of proceedings, that the Supreme Court's decision was binding so that was why the plaintiff rightly believed that Declarations were the way to go.
  14. This Court also has the alternative to order that the proceedings be converted to a Statement of Claim but that is not going to resolve the obvious legal dilemma I face which is that ultimately, the Supreme Court's decision is still there together with the amendments to the Prime Minister and National Executive Council Act 2002 which have retrospectively, legitimised the O'Neill Government's actions. I will address this dilemma later below.
  15. But for now, the amendments sought are, in my view, relevant and necessary, to provide a foundation for this Court to move forward and issue the orders it will issue. I give leave to amend in the form of the Originating Summons attached to the affidavit of Christopher Niken sworn and filed on 11th January, 2012 by Dotaona Lawyers.

B. Was S.5 Notice given to the State?


  1. The second defendant State seeks orders that the proceedings be dismissed because s.5 Notice was not given. In this case, the proceedings was commenced by Originating Summons. The issue to be considered is whether s.5 of the Claims By and Against the State Act applies to Originating Summons. Mr Henao relies on the case Maps Tuna Ltd v. Manus Provincial Government (2005) N2867 where I said that regardless of the mode of proceedings, actions against any entities of the State including Provincial Governments, must always commence by the issuing of s.5 Notice under the Claims By and Against the State Act. However, this decision was reversed by the Supreme Court in Maps Tuna Ltd v. Manus Provincial Government (2007) SC857 where the Supreme Court held amongst others, that because the defendant was a Provincial Government, that service should have been effected upon it as governed or provided by its enabling act. That it would or does not make any sense for a plaintiff to serve s.5 Notice upon the National Government when a Provincial Government's enabling legislation provided for its own purposes, including receipt and service of s.5 Notices and originating processes.
  2. Obviously, s.5 Notice need not be issued in this case. Therefore, I will dismiss Henaos' Lawyers' application.
  3. However, I must add that in Maps Tuna (supra), decision was made on clear facts where there was no dispute as to who the State was. In this case, there definitely is an issue. The faction led by Sir Michael Somare still believes very strongly that they are the legitimately appointed Government, relying on the Supreme Court's decision in SCR 03 of 2011. If that is the case, then Sir Arnold Amet should have briefed Henaos Lawyers (See The State v. Manoburn Earthmoving Ltd (2008) PGSC 21 SC933).
  4. However, on the other hand, the O'Neill Government believes strongly that it is the legitimately appointed Government. But Henaos Lawyers have not filed any affidavits by a representative of the State, more particularly the Attorney-General to say that it has briefed Henaos Lawyers to act for the State. The only affidavits by representatives of the State that they have filed, is that of Dr. Lawrence Kalinoe sworn on 5th January, 2012 and filed on 9th January, 2012, filed in support of application for lack of s.5 Notice. In that affidavit, Dr. Kalinoe deposes that he is the Secretary for Department of Justice and Attorney-General, an undisputed fact.
  5. The other affidavit Mr Henao relies on is that of Neville Devete, sworn on 29th December, 2011 and filed on 3rd January, 2012, also filed in support of application for lack of s.5 Notice. In that affidavit, Mr Devete deposes that he is Solicitor-General of Papua New Guinea, also an undisputed fact.
  6. I note that Henaos Lawyers have now found themselves caught up in this predicament because when I enquired as to which Government they represented, Mr Henao advised that he was appearing in Court for and on behalf of Peter O'Neill and his Government. However, in his written submissions at par. no. 26., written submission filed in the plaintiff's application to amend, Mr Henao submits and states therein:

"26. Additionally, there is no issue in relation to the legal effect of the Supreme Court decision in SCRef 03 of 2011 because pursuant to Section 19(2) of the Constitution, the opinion of the Supreme Court is binding."


  1. Therefore, quite apart from his statement that the Supreme Court decision is binding, Mr Henao is receiving instructions from the O'Neill Government.
  2. So the next prominent issue to be considered is – Who is the State? This I discuss in the part on 'applications to join'.

(ii) Applications to join


  1. All the parties intending to join the proceedings, i.e the Speaker of Parliament, Jeffrey Nape, Prime Minister Peter O'Neill and the National Executive Council are doing so because they believe that the proceedings by the plaintiff is an attempt to question the legitimacy of the O'Neill Government. In his affidavit sworn on 8th January, 2012 and filed on 10th January, 2012, Mr Jeffrey Nape, the Speaker of the National Parliament, deposes to the Parliamentary processes that are adopted and applied after a Prime Minister is sworn in. In his affidavit, Mr Nape deposes and refers to the affidavit of Tipo Vuatha, the Secretary to the Governor-General, sworn on 8th January, 2012 and filed on 10th January, 2012 which deposes that Dr. Allan Marat is the duly appointed Minister for Justice and Attorney-General. He deposes also that Sir Arnold Amet was dismissed as a Minister. I have read Tipo Vuatha's affidavit and confirm that to be so.
  2. Jeffrey Nape's affidavit sworn on 8th January, 2012 and filed on 10th January, 2012, contains a record of the events that transpired. I set out below a few of those events as deposed to by Mr Nape, to demonstrate that commonality of the issues raised.
  3. However, I also point out that Mr Nape, through his counsel, raised submissions on the manner in which the plaintiff has come to this Court. That the plaintiff seeks to validate administrative public law decisions which should be the subject of Judicial Review and not ordinary proceedings commenced by Originating Summons. That if allowed to join Parliament in the proceedings, Mr Nape will seek that the proceedings be dismissed as an abuse of process because:
  4. I briefly addressed these contentions under the part on applications to amend and say that although I agree with Ms Twivey, I will not dismiss the proceedings but will exercise my inherent power by not denying the plaintiff the right to seek justice and will judicially exercise this discretion under s.155(3)(a)(b) of the Constitution, by making the orders I will eventually make. By allowing the proceedings to remain in their amended form, it will form the foundation on which my decision will be made.
  5. I now set out the facts in relation to events that occurred commencing on 9th December, 2011, events known to Jeffrey Nape and which he deposed to in his affidavit.
  6. No doubt, the issue of the necessity of joining all parties is at the fore. If they are all joined, they will obviously be raising the issue of who the legitimate Government is, a fact that is now raised in Court in the amended Originating Summons and the affidavits filed.
  7. The law on Joinder is well established in this Jurisdiction. His Honour Hartshorn .J said in Konze Kara v. Public Curator of PNG (2010) N4048 where he referred to my decision PNG International Hotels Pty Ltd & anor v. The Registrar of Land Titles and ors (2007) N2307, wherein I reaffirmed that the principles on joinder in this jurisdiction are well established as was discussed by Kandakasi .J in Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718 where he enunciated principles adopted by Sakora .J in AGC (Pacific) Ltd v. Sir Albert Kipalan & ors (2000) N1944. These principles are:

"a) where the applicant has sufficient interest in the proceedings;


b) whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon. (my emphasis)


  1. So the common issue here is, will there be any purpose served if parties are joined, considering the issues they raise all relate to the legitimacy of both the Somare and O'Neill Government, and the decisions they made?
  2. The answer is yes. All applicants seeking to join, must join these proceedings as all issues will be brought to the fore.

Interpretation and analysis of common issues


  1. Based on the above discussions, I find these to be the common issues;

First issue - Will the amendments determine the real question in controversy between the parties which is the issue of who the legitimate Government is?


  1. If the Court were to give leave to amend the Originating Summons, the question it should ask itself is whether any useful purpose will be served if this is done. Additionally, if leave is refused and the matter proceeds on the same Originating Summons, will any useful purpose be served?
  2. All parties must appreciate the fact that this case together with those other related cases that were recently filed like Gabriel Yer v. The State, raise the same issues in relation to who actually has the power to make the decisions that are being made in relation to the hiring and firing of public servants of which the plaintiff and first defendant are, decisions made within the present political environment?
  3. If I were to dismiss the application to amend, parties will proceed to substantive hearing on the original Originating Summons which is basically the seeking of declarations relying on the decision in SCR 03 of 2011. And of course at that time, the defendants will be raising reliance on the recent amendments to the Prime Minister and National Executive Council Act 2002 and all other events that have recently occurred.
  4. It means then that this Court sitting as the National Court will of course give credence and reliance to the decision in SCR 03 of 2011. But then, it does not address the events that occurred before and after in Parliament which are the various appointments made by the O'Neill Government relying on the amendments to the Prime Minister and National Executive Council Act 2002.
  5. That issue must be properly clarified. The only entity or body that can clarify such a question is the Supreme Court.
  6. The issue of the validity of an Act of Parliament is one that must be determined by the Supreme Court for all parties and all stakeholders to then give credence or not to the actions taken by the O'Neill Government and the Somare Government before and after the decision in SCR 03 of 2011.
  7. In my view, the amendments sought will determine the real questions in controversy between the parties and is one that must be determined by the Supreme Court. As I said above, I will give leave to amend as it will provide the foundation and the basis on which this Court can then issue the appropriate directions to take the matter further. The plaintiff has liberty now to file and serve the amended Originating Summons.
  8. Relying on the amended Originating Summons, I will now pose a stated case and points of law for determination by the Supreme Court, relying on powers available to me under s.15 of the Supreme Court Act. I address this further below.

Second Issue - Who is the State for all intents and purposes?


  1. As I pointed out above, both the plaintiff and the defendants, together with the applicants to join, claim to represent the State. Obviously, there is a very serious dispute as to who the State is, considering the recent events. These questions arise before me:
  2. The plaintiff claims to have been properly appointed by the State in the Somare Government. The first defendant claims to have been appointed by the State, represented by the O'Neill Government.
  3. Again, the Supreme Court must determine who the State is.

Third Issue - Will there be any purpose served if parties are joined considering the issues they raise all relate to the interpretation of Constitutional provisions?


  1. Obviously, when considering the applications to join, I will have to interpret various Constitutional provisions cited to me by all counsel. I do not have the power to do that as jurisdiction falls within the domain of the Supreme Court, a bench comprising three (3) Judges or more.
  2. No doubt, a useful purpose will be served if parties are joined because prima facie that gives them standing to appear in the Supreme Court.
  3. This is done also with a view to ensuring that all issues are placed before the Supreme Court and properly argued.

Extension of Interim Injunctive Orders


  1. The plaintiff seeks an extension because he believes there is a status quo to maintain. The defendants oppose the extension because they submit the orders are preventing the first defendant from carrying out his Constitutional duties. They submit also that the plaintiff did not disclose all relevant facts to the Court and also that damages will be an adequate remedy for the plaintiff.
  2. These proceedings have been brought to the fore because of the very serious constitutional implications and effects of the decisions made by the O'Neill Government and the Somare Government in recent days. The decisions made have affected the lives of ordinary Papua New Guineans which has resulted in some of them coming to Court for redress, one of whom is the plaintiff. Those who have come to Court are career public servants whose lives were changed overnight, by the stroke of a pen. As for the plaintiff, he seeks redress because he believes he was appointed by a constitutionally mandated government and that the O'Neill Government's decision is not only arbitrary but is unjust and unwarranted.
  3. However, the first defendant says otherwise. He submits the actions by the O'Neil Government and the National Executive Council in appointing him as Police Commissioner on 14th December, 2011 and to revoke the plaintiff's appointment, was properly done.
  4. I find I was not misled by the plaintiff. Both parties have put before me all the relevant facts. All parties who have just joined, have followed suit by filing affidavits stating their position.
  5. In my view, the plaintiff's action has revealed that there are serious issues to be decided by the Supreme Court before this Court can proceed any further. This also applies to the other affected proceedings.
  6. The Interim Injunctive Orders must continue as there are serious questions to be tried. The Interim Injunctive Orders do not prevent members of the Police Force from carrying out their duties because it reads:

"An Interim Order until trial or further order restraining the defendants and their servants and agents and whosoever they may be described from arresting, harassing, intimidating, approaching, hindering or interfering with the plaintiff, his servants and agents, subordinates and commanders from performing their duties and functions as policemen under the Constitution and the Police Act 1998". (my emphasis)


  1. Bear in mind that his order does not legitimise an unlawful illegal act. The order is against Toami Kulunga. It is not pleaded that Toami Kulunga is the Commissioner of Police. He is also not named in the proceedings as such.
  2. In my view, the interim order allows the plaintiff to continue in his role "as policemen". I must emphasise, that the status quo is that Mr Kulunga will continue in his role as Police Commissioner until these Constitutional issues are properly determined. The plaintiff can continue to perform his role "as a policeman" (re Court Order) until the Constitutional issues are resolved. I trust all parties will maintain some civility about this until after the Supreme Court decides. Therefore, the Interim Injunctive Orders must remain until after the hearing of the Reservation.
  3. I caution the first defendant that he should not usurp the powers of the Police Commissioner by issuing orders that may appear to be punitive against the plaintiff personally. He must also await the outcome of the Reservation and to perform the role of a neutral Police Commissioner, without fear or favour.

Case or point for referral to the Supreme Court


  1. As stated above, a Judge of the National Court can refer any case or any point in a case to the Supreme Court for its consideration. This can be done pursuant to s.15 of the Supreme Court Act which reads:

"15. CASES OR POINTS OF LAW RESERVED FOR SUPREME COURT.


(1) A Judge or Judges of the National Court sitting in the exercise of any jurisdiction other than criminal jurisdiction–

(a) may reserve any case or any point in a case for the consideration of the Supreme Court; or


(b) may direct any case or point in a case to be argued before the Supreme Court,


and the Supreme Court may hear and determine any such case or point so reserved or directed to be argued.


(2) Except where the contrary intention expressly appears in a law, the powers conferred by Subsection (1) may be exercised in relation to any appeal or matter that comes before a Judge or the National Court under any law by which a Judge or that Court is designated as the Judge, Court, arbitrator or person appointed to hear and determine the appeal or matter, notwithstanding that the determination of the Judge or of the Court is expressed to be final or without appeal."


  1. When can a matter be referred to the Supreme Court under S.15 of the Supreme Court Act?
  2. In Isaac Lupari v. Sir Michael Somare, MP, Prime Minister and Chairman of the National Executive Council and The Independent State of Papua New Guinea (2008) SC930, a five-men bench of the Supreme Court comprising Salika, Sakora, Kandakasi, Batari and Gabi .JJ decided on 29th August, 2008 said that;

"31. The Supreme Court should not and cannot readily entertain all purported reservations under s. 15 of the Supreme Court Act, except only in cases where, there is a clear conflict and the National Court is left with no guidance whatsoever and the only option it has is to make a reservation of a "case or any point in a case for the consideration of Supreme Court".


32. The National Court must be allowed to discharge its duties and responsibilities under the Constitution and must not be allowed to derogate from or otherwise unnecessarily delay a due discharge of its duties and responsibilities in matters that it properly has jurisdiction. We are not making a new statement but are only reiterating statements to this effect already made by the Supreme Court in previous cases as in Lemuel Raz v. Paulias Matane (supra), Re s 42 of the Constitution and Jacob Hendrich Prai and In Re Organic Law on National Elections. What this necessarily means is that, the Supreme Court should refrain from readily assuming jurisdiction when reservations are purportedly made under s. 15 of the Supreme Court Act unless it is satisfied as to the merits of the reservation.


33. A failure to observe what we have just said has the danger of unnecessarily delaying proceedings, increasing costs and anxiety for the parties, which could even lead to a lack of confidence in the ability of our judicial system to deliver justice expeditiously. This has to be carefully observed in judicial review matters, which are supposed to be dealt with expeditiously, which is necessary for the purposes of good administration. The need for expeditious hearing and disposal of judicial review matters is evident in the Rules of the Court." (pgs. 13 and 14)

(my emphasis)


  1. In that case, the Supreme Court found that the questions presented in the Reference were not complicated but were capable of determination by the National Court. As such, the Supreme Court held that the National Court was not obliged to refer the questions to the Supreme Court. In those circumstances, the Supreme Court found the Referral to be incompetent in relation to all of the questions referred. The matter was then referred back to the Trial Judge in the National Court to deal with (par. no. 35 Isaac Lupari v. Somare & Anor (supra)).
  2. In this case, in my view, the National Court is not capable of determining the points raised in this case because of the obvious conflict. Only the Supreme Court can.
  3. I will proceed under s.15(1)(a) and (b) of the Supreme Court Act which is that I can direct any case or any point in a case to be argued before the Supreme Court and the Supreme Court may hear and determine any such case so directed to be argued.
  4. Order 8 of the Supreme Court Rules provides for what should occur when a Judge reserves points of law for consideration by the Supreme Court. Order 8 rules1 and 2 state the following;

"1. Where a Judge of the National Court reserves a case or any point in a case or any question of law for consideration of the Court under Section 15 or 21 of the Act, he or in his absence, another Judge may give such directions as he considers proper for the drafting of the case stating the question reserved and for the preparation of documents for the use of the Court.


2. Where a Judge of the National Court proposed under Section 21 of the Act to reserve a question of law, whether or not on the application of the accused, the Judge may give such directions as set out in Rule 1."


  1. In this case, it is O.8 r.1 that is relevant.
  2. What form does the reservation take?
  3. Division 2 of O.8, more particularly O.8 rr.3, 4, 5 and 6 provide for the manner in which a Reservation should be drafted and signed and how it should be served. It reads as follows:

"3. The case to be stated shall –


(a) be entitled under the Section of the Act by which it is made, the names of parties and the title of the proceedings from which the question arose;

(b) shall state the question;

(c) set forth such facts only as are relevant to raise the question of law reserved;

(d) if any question turns on the form of the pleadings, so much of the pleadings shall be set out as raises the question;

(e) state whether –

(f) be in accordance with form 12; and


(g) be signed by the Judge.


4. The reservation stating the question shall be transmitted by the Judge of the National Court by whom it was signed to the Registrar.


5. The Judge by whom the reservation was stated may amend the statement of the case at any time before argument.


6. Upon receipt of the reservation, the Registrar shall cause to be served a copy of the reservation –


(a) if under Section 15, on the parties to the proceedings or on their lawyers; and


(b) if under Section 21, on the Public Prosecutor, the accused or his lawyer."


  1. Can the questions be presented for consideration, in this case?
  2. Order 8 rule1 states that where a case is reserved or any point in a case or any question of law for consideration under s.15, the Judge or in his absence another Judge may give such directions as he considers proper. I find that I can draft the issues for consideration by the Supreme Court, as I am not absent from this jurisdiction. I will also sign the Reservation, as is the requirement under the Supreme Court Act (O.8 r.6).
  3. I must add here that although the points in this case I raise appear to have been settled in Haiveta v. Wingti (No. 3) [1994] PNGLR 197 and SCR No. 03 of 2011, the present political climate warrants or demands that I refer these questions of law to a higher authority re the Supreme Court, for interpretation. These are;

1. Whether the Supreme Court decision in Haiveta v. Wingti (No.3) [1994] PNGLR 197 and SCR No. 3 of 2011 gives the National Court the power to;


1(1) Call evidence in proceedings that eventuated in Parliament in relation to the election of Peter O'Neill as Prime Minister and to address the issue of the non-justiciabity or not of these proceedings as provided in s.134 of the Constitution.


1(2) If the National Court can call evidence to then address whether Mr O'Neill was elected "on the next sitting day" as provided in s.142(4) of the Constitution.


  1. If the National Court finds that the O'Neil Government did not sit "on the next sitting day", or did sit "on the next sitting day" for the National Court to then proceed to consider and make findings as to who actually represents or is the Independent State of Papua New Guinea, the entity.
  2. Having found who represents the Independent State of Papua New Guinea, to then rule on the validity of the amendments to the Prime Minister and National Executive Council Act 2000 (as amended).
  3. Thereafter, to then call evidence and deliberate on the substantive action before the National Court.
  4. If the Supreme Court finds that the National Court does not have the power to make these findings, for the Supreme Court to assume that role and to make the findings sought in para. no. 1(1), 1(2), 2, 3 and 4 herein.
  5. Having made those findings, for the Supreme Court to then issue directions in relation to the conduct of the substantive proceedings before the National Court.
  6. These questions will be included in the Reservation to be filed.

Related proceedings


  1. I note also the existence of SCR 01 of 2012, Special Reference by Dr. Allan Marat and others where he raises a series of questions for interpretation by the Supreme Court. These questions relate to various provisions of the Constitution and the Prime Minister and National Executive Council (amendment) Act 2002. Although, this Reference is filed separately, the questions arising therein have a bearing on the conflict and points of law raised in the Reservation to be filed. It is my recommendation that the both proceedings be dealt with together.
  2. Additionally, all other proceedings filed by individuals affected by decisions taken by the O'Neill Government relating to their sacking, suspension, termination of employment or other actions that have aggrieved these plaintiffs, that it is recommended that they should await the outcome of the Reference and Reservation. These cases are:
No.
Case No.
Plaintiff(s)
Defendant(s)
Lawyers
1.
OS 977 of 2011
Grabriel Yer
Steven Gibson & The State
Dotaona Lawyers

Twivey Lawyers
2.
OS 982 of 2011 (JR)
Graham Leslie Osborne
Jamie Maxton Graham & Ano Pala
John K. Gawi Lawyers

Solicitor-General – Mr Geita
3.
OS 14 of 2012 (JR)
Hudson Alois Ramatlap
Dr. Allan Marat, the Attorney-General as nominal defendant on behalf of Michael Ogio as the Governor-General and Head of State of Papua New Guinea & 4 ors
Steeles Lawyers

Twivey Lawyers
4.
OS 17 of 2012
Joseph Klapat
The National Executive Council, Anna Solomon & The State
M.S. Wagambie Lawyers/

No Appearance.
5.
SCR 01 of 2012
Special Reference by Dr. Allan Marat
Twivey lawyers – Ms T. Twivey for Referror

Posman Kua Aisi Lawyers – Mr P. Wright

Formal orders


  1. These are the formal orders of the Court:

___________________________


Parua Lawyers: Lawyer for the named First Defendant
Dotaona Lawyers: Lawyer for the Plaintiff
Henaos Lawyers: Lawyer for the named Second Defendant
Lawyer for the applicant to join
Posman Kua Aisi Lawyers: Lawyer for the Applicants to join - Sir Arnold Amet
Warner Shand Lawyers: Lawyer for the Applicants to join – Peter O'Neill and National Executive Council
Twivey Lawyers: Lawyer for Applicant to join - Speaker of
Parliament Jeffrey Nape


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