Ninkama v Wrakonei [2021] PGNC 54; N8799 (23 April 2021)

N8799

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 59 (IECMS) OF 2020

BETWEEN:
THOMAS NINKAMA
Plaintiff

AND:
COLONEL CARL WRAKONEI DIRECTOR NATIONAL DISASTER CENTRE
First Defendant

AND:
NATIONAL DISASTER CENTRE
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 15^th February 05^th March

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave application for Judicial Review – Notice of Motion – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Delay – Arguable case – Exhaustion of Internal processes – Material relied sufficient – Balance discharged – Leave granted – cost in the cause.

Cases Cited:

Aihi v The State (No 1)[1981] PNGLR 81

Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303

Barrick (Niugini) Ltd v Nekital [2020] PGNC 180; N8409
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kalinoe v Paraka Lawyers [2014] PGSC 38; SC136

Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992
Wahune v Barton [2017] PGSC 40; SC1636

Counsel:

G. Tine, for Plaintiff
K. Kipongi, for Defendant

RULING

23^rd April, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s originating summons of the 25^th September 2020 for leave to apply for judicial review pursuant to section 155 (4) of the Constitution and or Order 16 Rule 13 (1) of the National Court Rules.
   
2. Order 16 Rule 13 (1) gives the judicial review list which shall be updated at the end of every circuit month. It is in these terms, “Judicial Review List. The Registrar shall maintain a Judicial Review List which contains all judicial review cases pending determination in the National Court. The List shall be updated at the end of every circuit month.” It is not the jurisdictional basis by the rules for an application to seek leave for judicial review. And the invocation of Section 155 (4) of the Constitution only facilitates what is already there in law, the right to appeal against her sentence had lapsed for Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 (27 March 1981) because the 40 days allowed had expired. But if that were heeded viewing her circumstances, injustice would have flowed if she were not accorded the right to appeal, by invoking the inherent powers of the court under this provision, she was accorded Justice. Section 155 (4) facilitated it did not originate the jurisdiction.
   
3. The originating summons cannot remain in its form on the record of the court. It is without any jurisdictional basis by the Rules of Court: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). It is not properly founded in its pleadings and the action has no proper pleadings to drive the cause of action, Wahune v Barton [2017] PGSC 40; SC1636 (10 November 2017). There is no foothold for it to remain on the record of the court.
   
4. The plaintiff applies for Declaratory Order that the First Respondent, acting in the capacity as the Director for the National Disaster Centre, acted contrary to section 17 (1) (c) of the National Disaster Management Act, 1984 which renders the decision unlawful when he dismissed the applicant from employment hence it is null and void.
   
5. This is a substantive remedy sought in judicial review proper and not in a leave application. It is not in order at this stage because what is pertinent is that leave only is sought not any other substantive relief. In this regard the same is meted out to relief number 3 again a declaratory order: Kalinoe v Paraka Lawyers [2014] PGSC 38; SC136 (10 July 2014).
   
6. The pleadings do not fit that leave be accorded for Judicial review because the statement in support filed does not set out the arguable basis upon which leave can be granted for the application. It is not proper and sufficiently pleaded so as to enhance that leave is granted to the applicant: Asakusa v Kumbakor, Minister for Housing [2008] PGNC 39; N3303 (10 April 2008). And this view has been maintained by this court yet again as of recent in Barrick (Niugini) Ltd v Nekital [2020] PGNC 180; N8409 (5 June 2020) where the court stated the minimal to be pleaded in the following, “Whilst it would greatly assist to have clear and succinct pleadings in a judicial review, there is the danger of too much lawyering resulting in increased costs and delay by giving much more prominence to pleadings. Hence, what the parties and the Court should be focused in is the requirement to plead succinctly and clearly a statement of the relevant facts disclosing one or more of the basis or grounds upon which judicial review can be granted. As long as a valid ground for judicial review is granted, that should be sufficient. No knit-pick on the pleadings should be encouraged and permitted...”
   
7. As it is this is not a case were it would be allowed, because judicial review is a restrictive domain and busy bodies and the like have no part in it, nor are they allowed to venture:
   

“ Judicial Review is restrictive and for very good reasons because, “Grant of leave for review of an executive decision or act is a prerequisite for the hearing of a claim for judicial review...The leave application itself is a guided process in which the question of grant or refusal is discretionary. This stems from the fact that the judicial review application is a restrictive process. The rationale as ...is simple: Judicial Review is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances” at para 9,”Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992 (6 December 2012.

8. The plaintiff filed this proceeding for leave on the 25^th September 2020. He was the assistant risk manager with the second defendant when he was terminated by the decision made by the first defendant. Before that plaintiff was suspended pursuant to a letter dated 07^th August 2020. It is annexure “F” of the plaintiff’s affidavit.
   
9. The disaster Management Act does not set out what the internal process is as to the matter. Section 17 (1) of that Act does not empower, because it is in the following terms, “Functions of the Director. The functions of the Director of the National Disaster Centre are- (a) to Manage the National Disaster Centre; and (b) to provide assistance to the Provincial Disaster Committees; and (c) such other functions and duties as are, from time to time, directed by the National Disaster Committee.” There is nothing produced that the Director for the National Disaster Centre acted contrary to this provision. Nor can there be any unlawful conduct measured by this section or the Constitution “section 189 Civilian Control. All of the State Services other than the Defence Force shall be civilian services, and all of the State Services shall be subject at all times to ultimate civilian control. The pleadings relied here does not advance the cause of the plaintiff for leave for Judicial review: Asakusa (supra).
   
10. And it does not improve the cause of the plaintiff for leave when he pleads for an order in the nature of certiorari to remove into this Court and quash the decision of the First Respondent in dismissing the applicant from employment on the 19^th August 2020. Because at this juncture it is leave, not substantive relief which certiorari is: Innovest Ltd (supra). It would befall same where he is pleading for mandamus here. He has not demonstrated beyond the balance because there is no merit in all particulars set out above. The originating summons cause of action is dismissed in its entirety forthwith.
    
11. The formal orders of the Court are;
    
    • (i) Application for Leave is not made out.
    • (ii) Application is dismissed forthwith.
    • (iii) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Adam Ninkama Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants