Lano v Tugo [2018] PGNC 558; N7721 (3 July 2018)

N7721

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 211 OF 2018

BETWEEN
DR. AMOS LANO
Plaintiff

AND
SR. ORPAH TUGO as Acting CEO of Daru General Hospital
First Defendant

AND
MERENI MAINA as the Chairman of the Daru General Hospital
Second Defendant

Waigani: Dingake J
2018: 16 & 24 May, 19 June & 3 July

Cases Cited:

Gabriel Apio Irafawe v Yauwe Rigong (1999) PGNC 83 N1915
Jack Livinai Patterson v National Capital District Commission (2001) PGNC 71, N2145

Kiee Toap v Independent State of Papua New Guinea (2004) PGNC 18
PNG Forest Products Pty Ltd v Independent State of Papua New Guinea (1992) PGNC 111
Wabia v BP Exploration Operating Co. Ltd (1998) PGNC 177

Counsel:

Mr. Jimmy Apo, for the Plaintiff
Mr. Emmanuel Issac, for the Defendants

3^rd July, 2018

1. DINGAKE J: By Notice of Motion filed with this Court on the 1^st of May, 2018, the defendants seek the following orders:
   1. Pursuant to Order 12 Rule 40 (1) (a) (b) and (c) of the National Court Rules and the Court’s inherent jurisdiction to control proceedings before it, the proceedings herein be dismissed.
   2. Pursuant to Order 12 Rule 1 of the National Court Rules, the plaintiff and or his agents or associates be restrained from interfering with the defendants, either directly or indirectly, in any manner from running and managing the affairs of Daru General Hospital in their respective capacities;
   100. The plaintiff be barred from entering or going into Daru General Hospital premises and be ordered to keep himself twenty (20) meters away from the Hospital premises;
   4. The plaintiff be ordered to pay the costs of the defendants on an indemnity basis.
   5. Time for the entry of these Orders be abridged to the time for settlement which shall take place forthwith;
   6. Such further or other Orders as the Honourable Court deems appropriate.
2. The plaintiff in his Originating Summons filed with this Court on the 7^th of April, 2018, sought a number of declaratory orders against the defendants. A reading of the plaintiff’s originating summons suggests that the plaintiff’s cause of action is based on his claim that he is the Acting Chief Executive Officer of Daru General Hospital based on the decision of the National Court in OS(JR) No. 669 of 2012, per Cannings J. That decision was delivered on the 29^th of May, 2013.
3. Essentially, in the proceedings referred to above, the Court quashed the decision of the Minister of Health and HIV/AIDS Hon. Michael Malabag MP, dated 31^st of October, 2012, suspending the plaintiff as Acting Chief Executive Officer of Daru General Hospital and to appoint another person in his place. The Court directed that the plaintiff is entitled to resume duty and the person appointed in his place will cease to hold office as Acting Chief Executive Officer, at 12:00 noon on 4^th of June, 2013.
4. The plaintiff in his originating summons, also seeks a declaration that he is an Acting Chief Executive Officer of Daru General Hospital on the basis of letters dated 8^th of June, 2017 and 29^th of September, 2017 written by the Secretary of the National Department of Health.
5. The plaintiff seeks an interim injunction to facilitate the resumption of duties or to enforce the Order reinstating him as Acting Chief Executive Officer of Daru General Hospital.
6. In the notice of motion referred to earlier the defendants move the Court to dismiss the proceedings on the basis that the proceedings do not disclose a reasonable cause of action, are frivolous and vexatious and are an abuse of Court process.
7. Essentially, the defendants contend that the proceedings commenced by the plaintiff are hopeless and stand no chance of success and that they amount to harassment of the defendants.
8. It is trite learning that proceedings will be frivolous in nature if the plaintiff’s claim is hopeless, untenable and bound to fail. (Toap v Independent State of Papua New Guinea (2004) PGNC 18.)
9. Quite plainly, I cannot appreciate the complaint of the defendants. I do not appreciate what it is about the plaintiff’s proceedings that cannot be understood. The plaintiff’s complaint is simple and straight forward. He says the Court must declare him an Acting Chief Executive Officer of Daru General Hospital as per the decision of the National Court, per Cannings J in OS (JR) No. 669 of 2012 and the letters of the Secretary of the National Department of Health dated 8^th June, 2017 and 29^th of September, 2017.
10. A cause of action is disclosed once a plaintiff alleges a violation of a right he has in law and the facts giving rise to the suit (Irafawe v Yauwe Rigong (1999) PGNC 83). In this case, the plaintiff avers that he is entitled to be declared an Acting Chief Executive Officer of Daru General Hospital because the Court has so ordered. There can be no clearer cause of action. The relief that he seeks in a form of a declaration is known in law and permissible.
11. It is only in exceptional circumstances that this Court would drive a plaintiff or defendant from the judgment seat and deny him or her the opportunity to be heard. This can only be done when the pleadings are incurably bad and stand no chance of success. This is not so with this proceedings. (Patterson v National Capital District Commission (2001) PGNC 71 N2145; PNG Forest Products Pty Ltd v Independent State of Papua New Guinea (1992) PGNC 111; Wabia v BP Exploration Operating Co. Ltd (1998) PGNC 177).
12. In my considered opinion the plaintiff’s originating summons disclose a clear cause of action, are not frivolous and vexatious and neither could they be said to be an abuse of Court process.
13. The matters concerning the legality of the alleged appointment of the first defendant are better dealt with at a trial, and I will not waste time traversing and interrogating the statutory regime governing the appointment of the Chief Executive Officer’s as that would be premature and unnecessary for purposes of determining the defendant’s notice of motion.
14. On the face of the evidence under pinning this notice of motion from both parties, it seems to me, without deciding, that the defendants may well be in contempt of Court.
15. In my mind Court Orders are non - negotiable. They must be complied with. A party unhappy with the decision of Court may either appeal against such decision or seek to review it as circumstances may dictate.
16. In all the circumstances of this case, the applicant’s application is without merit.
17. In the result it is ordered that:
    1. The application filed with this Court on the 18^th of May, 2018, is dismissed in its entity with costs.
    2. This matter is scheduled for the Directions hearing on the 12^th of October, 2018, at 9:30 am.

_______ ____________________________________________________
Apo & Co Lawyers: Lawyers for the Plaintiffs
Emmanuel Lawyers: Lawyers for the Respondent/Defendant