Sampson v National Executive Council [2018] PGNC 568; N7712 (19 December 2018)

N7712

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 734 OF 2018

BETWEEN:
AQUILA SAMPSON
Plaintiff

AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
ROBERT ALPHONSE KAIYUM
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018: 21 & 23 November

Cases Cited:

Digicel (PNG) Ltd v Jim Miringtoro (2015) PGSC27; N6064;
Guinea (2014) N5642);
Jim Kas v Sevua & Others (2000) N2010;
The Honorable Peter O’Neill v The Ombudsman Commission of Papua New

Counsel:

Mr. L Baide, for the Plaintiff
Mr. L Kandi, for the First & Third Defendants
Mr. W Thomas, for the Second Defendant

19^th December, 2018

1. DINGAKE J: The applicant, Acquila Sampson, was appointed by the first defendant, as the Provincial Administrator for Western Province, on the 7^th of June, 2018.
2. About two months, later, on the 2^nd of August, 2018, the first defendant rescinded the decision to appoint the applicant the Provincial Administrator for Western Province and appointed the second defendant.
3. The applicant being aggrieved by the decision of the first defendant seeks leave to review the said decision taken on the 2^nd of August, 2018, NEC Decision No. 223/2018, on a number of grounds captured in the Statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules, filed of record.
4. The application is made pursuant to Order 16 Rule 3 of the National Court Rules.
5. By law, the appointment of the Provincial Administrator should be gazetted (Section 73(2) of the Organic Law on Provincial Governments and Local Level Governments).
6. It follows from the above that the appointment is given legal effect by notice in the National Gazette.
7. In this case, the appointment of the applicant was rescinded before it was gazetted, but he was so informed by a Minister or Ministers.
8. To succeed in an application for leave to apply for judicial review, the applicant is required by law to satisfy the following requirements:
   1. He has locus standi or sufficient interest in the matter, the subject of the review;
   2. There are no other statutory or administrative remedies that have to be exhausted to challenge the subject decision;
   100. He has an arguable prima facie case; and
   4. The application is brought without undue delay or within four (4) months after the date of the decision, if the application is for an order of certiorari. (Digicel (PNG) Ltd v Jim Miringtoro (2015) PGSC27; N6064; The Honorable Peter O’Neil v The Ombudsman Commission of PNG (2014) N5642).
9. Order 16 Rule 3 (5) of the National Court Rules requires an applicant in an application for leave to review to show sufficient interest in the matter to which the application relates.
10. Order 16 Rule 3 (5) of the National Court Rules provides:
    • “5. The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”
11. Sakora J pertinently observed in the case of Jim Kas v Sevua & Others (2000) N2010, at page 16, that:
    • “This enables the Court to be satisfied that the applicant is not a “meddlesome busy body”. Thus, through this sub-rule the issue of locus standi is determined at the outset. The requirement of locus standi or standing determines who exactly is legally entitled to bring particular dispute or claim before the Courts and invoke the powers of the Courts. Thus, once again, only meritorious interests gain access into the Courts. Some commentators use the term real interest to convey the same notion, as opposed to, for instance, an ideological concern in the outcome. Perhaps, yet another way of describing this requirement is as others have where they use the phrase genuine grievance rather than, say, litigation out of spite or malice”. (Underlined added)
12. In my mind the issue of locus standi is fundamental, in the exercise of the Court’s discretion to grant or refuse leave; and where the applicant has no sufficient interest, the Court should refuse to grant leave.
13. The requirement of standing is important if the Court is to avoid opening the flood gates and allowing any person, who has cause to be unhappy, but has really no sufficient interest in the matter to be heard. If the Courts were to allow any unhappy person, who cannot or could not demonstrate sufficient interest in the matter, to be heard, the arteries of the administration of justice would be clogged and eventually the whole system would be paralysed and serve no meaningful purpose.
14. The material question that falls for determination in this matter is whether the applicant has sufficient interest to bring judicial review of the decision complained of.
15. In my mind, the process of the appointment of the applicant according to law was not complete. It would have been completed by a notice in the gazette making it clear that he was so appointed. Communication by Ministers or whosoever to the applicant that he was appointed a Provincial Administrator of the Western Province is not a method sanctioned by law, and no weight can be placed on it.
16. It seems to me, on the facts and circumstances of this case, that the applicant cannot complain that he was deprived of any right or interest, in a situation where his appointment was never concluded legally. The situation may well have been different if the rescission of his appointment was done following notice in the Gazette having been published.
17. In all the circumstances of this case, I find that the applicant has failed to show that he has sufficient interest to pursue any judicial review in this matter.
18. Having regard to my conclusion that the applicant lacks locus standi it is unnecessary for me to consider the other pre-requisites to be satisfied for leave for judicial review to be granted.
19. In the result it is ordered that:
    1. The application for leave to review is refused with costs.

_______ ____________________________________________________
Mr. L. Baide: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the First & Third Defendants
Thomas & Co. Lawyers: Lawyers for the Second Defendant