Hamaka v Isifu [2022] PGNC 297; N9798 (22 July 2022)

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as Member of the Moran Local Level Government Special Purpose Authority representing North West Moran

GIBSONN TIGI, PAUL YAWE, THOMAS TAWANDA, JACKSON IRALI, DAVID DALIRA, GIBSON PUNGA AND DANNY TADABE as purported members of the Management Committee of Moran Local Level Government Special Purpose Authority

Substantive hearing of Originating Summons- whether proceedings should have proceeded by way of judicial review- Plaintiff entitled to proceed by way of Originating Summons according to the reliefs sought-

Moran Local Level Government Special Purpose Authority is a corporation and has perpetual succession pursuant to section 44 of the Local Level Government Administration Act 1997- Minister’s decision contemptuous of previous orders of the National Court

Sipison v Tkachenko [2018] PGNC 445; N7560
Telikom PNG Limited v Rava (2018) SC1694
Andrew Faingu and Aida David v Bank South Pacific (2012) N4847
Attorney General and The State & Ors v Dr Pirouz Hamidian-Rad [1999] PNGLR 444
Hamaka v Dion (2016) N6294

Mr. Paul Harry, for the First Plaintiff
Mr. Justine Haiara, for the Second Plaintiff
Mr. Jason Kolo, for Mr Paul Yawe as one of the Third Defendants
Mr. Nemo Yalo, for the Third Defendants

4. Essentially, the first six declarations sought by the Plaintiff in the Originating Summons filed on 7 June 2019 seek to challenge the decision of the Minister for Inter-Government Relations regarding the Moran Local Level Government Special Purpose Authority and the tenure of the Members of the Moran Local Level Government Special Purpose Authority. The other remaining reliefs are interim as they seek restraining orders in the interim however the utility for those interim reliefs may have passed as the Court is now deciding on the substantive nature of the matter.

5. In addressing the issue of competency raised by Mr. Kolo, I will take the relevant case laws that Mr. Kolo relies on for his objection that as the cases of Sipison v Tkachenko [2018] PGNC 445; N7560 (7 August 2018) wherein the Court was of the view that the Plaintiff in those proceedings had filed an Originating Summons when a careful consideration of the Claim revealed that the Plaintiff was, in fact, challenging the process of his suspension from the NEC and was seeking orders in the nature of prerogative writs and therefore the Court was of the view that it was important to consider the substance of the relief sought. The Court, therefore, dismissed those proceedings as the Court was of the view that the matter should have proceeded by way of judicial review as it sought orders in the nature of prerogative writs.

6. Mr. Kolo also relies on the case of Telikom PNG Limited v Rava (2018) SC1694 in which the Supreme Court considered what may fall under the category of abuse of process of proceedings where two proceedings are filed over the same cause of actions over the same matter, or where a party refiles a claim to seek a second bite of the cherry so to speak after being unsuccessful in its first attempt from a prior proceeding and or when the Court processes have been improperly used or used for an improper purpose and or such abuse of process have resulted in the right of the other party being denied, defeated and or prejudiced.

7. Mr. Kolo also relies on the case of Andrew Faingu and Aida David v Bank South Pacific (2012) N4847 Andrew Faingu and Aida David v Bank South Pacific (2012) N4847 where the plaintiff commenced proceedings by way of Originating Summons however the Court acknowledged that a Plaintiff is entitled to choose the mode of proceedings to take however though the originating summons pleaded declaratory relief, there were serious disputes as to the facts which orders cannot be claimed in an originating summons. It is Mr. Kolo’s submission that there are serious facts in dispute in these proceedings wherein the declaratory orders sought can not be granted and Mr. Kolo maintains that the Plaintiffs should have proceeded by way of judicial review. I find that there are no serious issues of facts involved in this matter.

8. In the case of Attorney General and The State & Ors v Dr. Pirouz Hamidian-Rad [1999] PNGLR 444, the Supreme Court held that where an applicant is seeking an order in the nature of certiorari, the proper process was under Order 16 of the National Court Rules by way of judicial review. The Court stated that Order 16 is an exclusive procedure where also a prerogative writ is sought.

"An application for an order in the nature of mandamus, prohibition, certiorari or quo warrant shall be made by way of an application for judicial review in accordance with this Order.”

10. I find that the Plaintiffs relief sought in the Originating Summons does not fall under the relief specifically stated in Order 16 of the National Court Rules. The Plaintiffs are seeking orders in the nature of declaratory orders and to my mind, a party is entitled to choose the mode of proceedings and the manner in which it approaches the Court as to the relief it seeks, and the Plaintiff has proceeded by way of Originating Summons under Order 4 of the National Court Rules. I, therefore, refuse the objection raised by Mr. Kolo as I find no abuse of process in the manner in which the Plaintiffs have pursued this matter by filing of an Originating Summons and seeking declaratory reliefs.

11. On 5 June 2018, the Third Defendants filed proceedings OS No. 368 of 2018: Gibson Tigi & Ors v Anthony Hamaka in which they sought declaratory orders that Mr. Anthony Hamaka’s term as the Chairman of the Moran Local Level Government Special Purpose Authority had expired on 20 April 2013 including other orders that the Third Defendants in these proceedings be declared as the duly appointed members of the Management Committee of the Moran Local Level Government Special Purpose Authority.

12. On 16 August 2018, Justice Kandakasi (as he was then) made orders dismissing those proceedings being OS No. 368 of 2018 and also made orders that the Third Defendants in these proceedings or the Plaintiffs in those proceedings are permanently restrained from holding themselves out as Chairman, Deputy Chairman and Management Committee Members of the Moran Local Level Government Special Purpose Authority.

13. On 14 December 2018, OS No. 984 of 2018: Hon Luke Panguma & Anor v Hon Leo Deon and Two Others was filed in which the Plaintiffs in those proceedings sought that the Moran Local Level Government Special Purpose Authority had a six-year term pursuant to section 4 of the Constitution of Moran Local Level Government Special Purpose Authority. Those proceedings were discontinued by way of Consent Orders on 25 April 2019 which included other declaratory orders and were signed by Mr. Martin Kombri as the lawyer for the Plaintiff in those proceedings and Mr. Tauvasa Tanuvasa as Solicitor General.

14. On 4 June 2019, the Plaintiff filed a Supreme Court Review on OS 984 of 2018 in SCR No.40 of 2019 however the Supreme Court Review was discontinued by the Plaintiff on 16 July 2019.

15. OS 984 of 2018 was however challenged in another proceeding in WS 904 of 2019 instituted by the Plaintiff and Others on 5 August 2019 raising issues of fraud on the final orders of OS 984 of 2018 and seeking that proceedings OS 984 of 2018 be reinstated amongst other orders. The WS 904 of 2019 is still pending a decision from Justice Anis after a trial on the matter held on 20 September 2021.

16. There are also proceedings by way of judicial review in Hamaka v Dion (2016) N6294 in which the National Court had made a decision on the appointment of the Chairman and members of the Management Committee of the Moran Local Level Government Special Purpose Authority in proceedings filed by the Plaintiff and others against the Minister and the State and Another. The decision of Hamaka v Dion (2016) N6294 is in proceedings described as OS (JR) 647 of 2015.

17. The Plaintiff has also filed a proceeding described as OS 262 of 2018 however those proceedings were discontinued on 4 May 2018 and therefore it is not necessary for me to go into those proceedings as they do not hinge on this matter.

18. At this juncture, I deflect to consider the submissions by Mr. Yalo who acts for the Third Defendants in these proceedings that perhaps these proceedings are merely an academic exercise as it raises the same issues in proceedings WS 904 of 2019 wherein the Plaintiff seeks to resurrect proceedings OS 984 of 2018.

19. What then are the nature of the Orders sought in OS 984 of 2018? The declaratory orders sought in OS 984 of 2018 which was allegedly agreed to in the Consent Orders which also discontinued the proceedings go towards the term of the Moran Local Level Government Special Purpose Authority and that it ceased to exist from 25 January 2013 and was extended for an indefinite period by the Minister for Inter-Government Relations in an instrument dated 19 December 2017 and also sought declarations of persons including the Third Defendants in these proceedings as members of the Management Committee of the Moran Local Level Government Special Purpose Authority including other orders.

20. The Plaintiff is essentially seeking declaratory orders in regard to an Instrument signed by the First Defendant, Hon Kevin Isifu as Minister for Inter-Government Relations on 8 February 2019 and published in the National Gazette No. G298 dated 17 April 2019. This Instrument or decision of the Minister regarding the Moran Local Level Government Special Purpose Authority was made a few days before the discontinuance of OS 984 of 2018 on 25 April 2019. To my mind these proceedings are not an abuse and should be properly considered on its own merit based on the decision of the First Defendant made on 8 February 2019 and a decision reached herein will conclude matters as of the date of the Minister’s decision on 8 February 2019 and any matters arising before that will be settled or be put to rest.

21. I take the issues raised by the Second Plaintiff in Mr. Haiara’s submissions as the relevant issues on behalf of the Plaintiffs as it canvasses all the issues raised by the First Plaintiff and I address those issues raised by both Plaintiffs accordingly in this decision. It is acknowledged that the evidence in support of this claim is by the First Plaintiff. The Defendants have not made any substantial submissions on the substantive arguments put forth by the Plaintiffs on the matter.

22. The First issue raised by the Second Plaintiff herein is whether the instruments issued by the First Defendant on 8 February 2019 which purportedly renewed the terms of the Moran Local Level Government Special Purpose Authority and appointed the Third Defendants as Management Committee members of the Moran Local Level Government Special Purpose Authority is valid and proper?

23. The First Defendant and or the Minister’s decision made on 8 February 2019 in regard to the renewal of the term of the Moran Local Level Government Special Purpose Authority is reproduced as follows:

“(NATIONAL COUR ORDER OF OS 648 OF 2014 – ORDER TERM 1)
BY HIS HONOUR AMBENG KANDAKASI,J

I, HON. KEVIN ISIFU, MP, Minister for Inter-Government Relations, by virtue of power
conferred by section (45) 4 of the Local-Level Government Administrative Act, 1997 and
under the constitution of the Moran Local-Level Government special Purpose Act, 2009, the
term of the Authority is 6 years specified under PART II, Division 1, Section 4 and the term be
revised by the parties within 6 years from the date of the establishment of the Authority. The
Authority was established on 24^th January, 2007 and the term of the Authority expired on
January, 2013.

With the consideration of the views from the project area of Central Moran Landowners,
affected PNG LNG Pipeline landowners through their Head of Rural Local-Level
Government, Hulia Rural Local- Government Assembly as the establishment body of the
Moran Local-Level Government Special Purpose Authority through their meeting resolution
No. 01/2017, Agenda No. 5(1) dated 19^th December, 2017, passed its resolutions, variations,
dissolutions, resolved and renewed the Authority (Moran Local-Level Government Special
Purpose) for another term.

I, now as a part to the Special Purpose Authorities and Local-Level Government matters
throughout, the country with powers vested in me as Minister responsible for Special Purpose
Authorities and Moran Local-Level Government Authority Constitution, I hereby approve and
endorse the extension of the term of the Authority (Moran Local-Level Government Special
Purpose Authority) for another indefinite period until such time the parties revise from the
date of signing of this instrument.”

24. The other decision by the First Defendant or the Minister made on 8 February 2019 is in regard to the appointment of the Third Defendants as Members of the Moran Local Level Government Special Purpose Authority. That decision is reproduced as follows:

I, KEVIN ISIFU, MP. Minister for the Inter-Government Relations, by virtue of powers conferred by section (45) 4 of the Local-Level Government Administrative Act, 1997 and all powers enabling me, hereby endorse the Nominees named in Column 2 to represent the interest of the stakeholders mentioned in Column 3 of the Schedule below with effect on, and from the date of this notice.

NO	COLUMN 2 REPRESENTATIVES	COLUMN 3 NAMES
1	Homa, Paua and Paguale Yalanda Local Areas (i) Paguale Yalanda Local Area (ii) Homa Local Areas (iii) Paua Local Areas	Mr. David Dalira Mr. Thomas Tawanda Mr. Jack Irali
2	Apporo’ Uri Resources Owners Association (AUROA)
	(i) Kaipu/Sisipai Local Areas	Mr. Paul Yawe
3	Pai Parapia Resources Owners Association (AUROA)
	(i) North West Moran PDL 6	Mr. Gibson Tigi
4	Homa Paua Peoples Associations (HPPA) (i) Central Moran PDL 5	Mr. Gibson Molo
5	Hulia Rural Local-Level Government (HRLLG) (i) Youths (ii) Women & Churches	Mr. Danny tadabe Mr. Tabe Hani
6	Department of Petroleum & Energy	Secretary or his/her delegate
7	Department of Finance	Secretary or his/her delegate
8	Department of National Planning & Monitoring	Secretary or his/her delegate
9	Project Develop of Oil & Gas (Oil Search Ltd)	Managing Director or his/her delegate
10	Komo Margarima District Development Authority	Chief Executive Officer (CEO)

25. The Plaintiff’s have therefore raised the issue of whether the Minister had powers to extend the term of the Moran Local Level Government Special Purpose Authority?

26. The Minister has relied on section 45(4) of the Local-Level Government Administrative Act 1997 and PART II, Division 1, Section 4 of the Constitution of the Moran Local Level Government Special Purpose Authority that the term of the Authority is for six years and that on its establishment on 24 January 2007, the Authority’s term expired in January 2013. The Minister’s decision therefore to my mind is premised largely on section 4 of the Constitution of the Moran Local Level Government Special Purpose Authority.

27. The Plaintiffs however submit that pursuant to section 44 (b) of the Local Level Government Administration Act 1997 and section 3(2)(b) of the Moran Local Level Government Special Purpose Authority Constitution, the Moran Local Level Government Special Purpose Authority by virtue of it being an Authority and to my mind a corporation pursuant to section 44(a) of the Act, it has perpetual succession and therefore it can not be said to exist for only 6 years. Perhaps what could be said to have existed for only six years is the term of those who hold office in the Authority.

28. I, therefore, find and uphold the submissions by the Plaintiffs that the Minister erred in his decision to extend the term of the Authority when the Authority is a corporation pursuant to section 44 of the Act and it has perpetual succession. Section 44 of the Act is echoed in section 3 of the Constitution of the Authority. I find that the Minister’s decision to rely on section 4 of the Constitution of the Authority that the Authority has a lifespan of 6 years is misconceived and is in error.

29. I uphold the submissions by the First Plaintiff that pursuant to section 42 of the Act, an Authority is established by a proclamation by the Head of State acting on advice by the NEC and it can be dissolved by the Head of State acting on the advice of the NEC pursuant to section 47 of the Act.

30. I also uphold the submissions by the First Plaintiff that section 45(4) as relied on by the Minister in his decision does not confer on the Minister any such power to extend the term of an Authority, section 45(4) only refers to the Members of a Management body of the Authority.

31. Is the second decision by the Minister to appoint the Third Defendants on 8 February 2019 null and void and or unauthorized by law?

32. The Minister in his second decision of 8 February 2019 has relied on section 45(4) of the Local-Level Government Administrative Act 1997 to endorse and or appoint the Third Defendants and or the people named in the decision as Members of the Management Committee of the Moran Local Level Government Special Purpose Authority.

4) The membership, manner of appointment and terms and conditions of appointment of members of a management body are as prescribed.

34. The Plaintiffs argue that the decision by the Minister breached section 5 and section 6(1) of the Constitution of the Authority. Having read section 5 and section 6 of the Constitution of the Authority, I am satisfied that the prescribed manner of appointment of the membership of the Management Committee of the Authority is as prescribed in its Constitution in section 5 where it spells out the composition of the Management Committee and section 6 of the Constitution dictates the tenure of the members of the Management Committee of the Authority.

35. I, therefore, uphold the submissions by the Plaintiffs and agree with the decision of Justice Makail in Hamaka v Dion (2015) N6294 that the Minister does not have the requisite power to appoint and or revoke the appointments of the members of the Management Committee of the Moran Local Level Government Special Purpose Authority.

36. The Court had therefore made that decision in 2015 and the Minister’s decision is in defiance of the Orders of the Court as well as it is contrary to law.

37. The Plaintiffs have therefore also argued that the Minister’s decision to appoint the Third Defendants on 8 February 2019 is contrary to the decision of Justice Kandakasi (as he was then) in the matter OS No. 368 of 2018 where His Honour permanently restrained the Third Defendants from holding themselves out as members of the Management Committee of the Moran Local Level Government Special Purpose Authority.

38. The Plaintiffs argue that the Court Orders in OS No. 368 of 2018 have never been set aside, quashed or varied and therefore those Court Orders still stand. I find that the Minister’s decision is in breach of the Orders of the Court in OS No.368 of 2018 and is contemptuous of both the Orders of the Court in OS No. 368 of 2018 and the decision of Justice Makail in OS (JR) 647 of 2015 as it is contrary and blatantly in defiance in the face of the Court.

39. Are the Plaintiffs unlawfully displaced by reason of the appointment of the Third Defendants by the Minister on 8 February 2019? I answer this in the affirmative. The Minister’s decision for the appointment of the Third Defendants is therefore illegal and void and contemptuous of the decisions of the Court in OS No. 368 of 2018 and OS (JR) 647 of 2015.

40. It follows that Terms 1 to 6 in the Plaintiff’s Originating Summons filed on 7 June 2019 are granted as to the declaratory orders sought.

41. As to costs, as costs is a discretionary matter and that given the findings in this judgment that the Minister’s decision of 8 February 2019 is contemptuous of previous Orders of this Court in regard to the Minister having no authority to appoint the Members of the Management Committee of the Authority and that the Minister’s decision is contrary to the Court restraining the Third Defendants from holding themselves out as Members of the Management Committee of the Moran Local Level Government Special Purpose Authority, the Defendants shall meet the Plaintiffs’ costs on a solicitor-client basis to be taxed if not agreed.

Kolo & Associate Lawyers: Lawyers for Mr Paul Yawe as one of the Third
Defendants

National Court of Papua New Guinea

Hamaka v Isifu [2022] PGNC 297; N9798 (22 July 2022)