Goso v Peneha [2022] PGNC 465; N9977 (11 October 2022)

N9977

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 120 OF 2022

BETWEEN:
MINAHO GOSO, Ward 8 Councilor & Former Gahuku Local Level Government President
Plaintiff

AND:
GIDEON PENEHA, Ward 7 Councilor and newly elected Gahuku Local Level Government President
First Defendant/Respondent

AND:
GAHUKU LOCAL LEVEL GOVERNMENT
Second Defendant/Respondent

AND:
BENSON IMARA, Chief Executive Officer of Goroka District Development Authority
Third Defendant/Respondent

AND:
GOROKA DISTRICT DEVELOPMENT AUTHORITY
Fourth Defendant/Respondent

Goroka: Mugugia, AJ
2022: 4^th & 11^th October

JUDICIAL REVIEW – Application for leave for judicial review of the process leading up to the removal of the Plaintiff as President of Local Level Government - Requirements for leave to satisfy – Whether the Plaintiff has sufficient interest - Whether there was undue delay - Whether the Plaintiff has an arguable case - Whether the Plaintiff has exhausted all available administrative remedies – Plaintiff is aggrieved by the decision to remove him. He has sufficient interest - No undue delay in bringing the application for leave - Based on documents relied on, the Plaintiff has an arguable case - Application for leave for judicial review granted.

Cases Cited:

Mondiai & Others v. Wawoi Guavi Timber Company Ltd (2007) SC886
Asakusa v. Kumbakor (2008) N3303
The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417
Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Counsels:

S. Ifina, for the Plaintiff
R. Uware, for the Defendants

RULING

11^th October, 2022

1. MUGUGIA, AJ: The Plaintiff Mr Minaho Goso was removed as the President of the Gahuku Local Level Government by a vote of no confidence by the members of the Gahuku Local Level Government on 24^th May 2022. He was voted out and the First Defendant/Respondent Gideon Peneha was elected as the new President. Being aggrieved by this decision, Mr Goso filed this judicial review proceedings on 31^st May 2022. He is questioning the process leading up to his removal.

2. If leave is granted, Mr Goso seeks an order in the nature of certiorari to quash the decision made on 24^th May 2022. He also seeks a declaration that the process followed by the First, Second and Third Respondents which resulted in convening the meeting on 24^th May 2022 is null and void and has no effect, and a declaration that he is still the President of the Gahuku Local Level Government.
3. I heard the leave application on 4^th October 2022. Counsel for the Plaintiff Mr Ifina relied on these two supporting affidavits at the hearing:

(i) Affidavit in Support of Minaho Goso filed on 22^nd August 2022; and

(ii) Affidavit in Support of Minaho Goso filed on 31^st July 2022.

4. The requirements for leave that an applicant for leave is required to satisfy are:

(a) Sufficient interest.

(b) Undue delay.

(c) Arguable case.

(d) Exhaustion of administrative remedies.

5. The issue for determination at this leave stage is whether the Plaintiff has satisfied all the requirements for leave for judicial review.

6. There was no strong opposition from the State lawyer Mr Uware. He advanced the argument that the Plaintiff has filed a wrong mode of proceedings. The proper mode of proceedings should have been by way of an originating summons under Order 4 of the National Court Rules because this is an election of a local level government president.

WHETHER THE PLAINTIFF HAS ‘SUFFICIENT INTEREST’

7. Order 16, Rule 3(5) of the National Court Rules provides the test. The Court shall not grant leave for judicial review unless it considers that an applicant has a sufficient interest in the matter to which the application relates.

8. In Mondiai & Others v. Wawoi Guavi Timber Company Ltd (2007) SC886, the Supreme Court held that:

“To determine whether a person has sufficient interest for the purposes of National Court Rules, Order 16, Rule 3(5), the Court should ask:

(a) Is the party complained about a public body?

(b) Does that party have duties to perform at law, i.e., statutory duties?

(c) What is the nature of the alleged breach of duty? Are they duties in law or do they fall within management or administrative guidelines for decisions to be taken within a lawful discretion?

(d) What is the Plaintiff’s relationship to the duties alleged to have been breached?

(i) Are they merely busy bodies?or

(ii) Are they genuinely concerned?

(iii) Do they objectively point to some duty in law which (arguably at the leave stage) has not been observed?”

9. I am of the view that Mr Goso has a sufficient interest in the matter to which the application relates. He is aggrieved by the decision. This requirement for leave has been satisfied by Mr Goso.
WHETHER THERE WAS ‘UNDUE DELAY’

10. The subject decision was made on 24^th May 2022. The Originating Summons was filed on 31^st May 2022. I find that the application for leave was made promptly. There was no undue delay. This requirement for leave has been satisfied by Mr Goso.

WHETHER THE PLAINTIFF HAS AN ‘ARGUABLE CASE’

11. The test which Injia DCJ (as he then was) referred to as the ‘proper and sufficient pleading test’ in Asakusa v. Kumbakor (2008) N3303 is ‘whether the grounds pleaded in the Statement in Support contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached, with reference to established grounds of review which the law recognizes as proper grounds for review’. The proper grounds for review include those specified by statute and subject to the Constitution or any relevant statute. “Ultra vires” (lack of jurisdiction), breach of procedures prescribed by statute or sub-ordinate legislation, and error of law are examples of some proper grounds for review which can be raised.

12. Based on a quick perusal of the materials before me, I am of the view that the application for leave does present an arguable case. Under the grounds in the Statement in Support filed on 31^st May 2022, Mr Goso alleges error of law. He claims that there is a breach of the Local Level Government Act 1997 and the Gahuku Local Level Government Standing Orders and Rules for Debate.
13. I apply the ‘proper and sufficient pleading test’ here. On a quick perusal of Mr Goso’s Statement in Support and Affidavit in Support, I am of the view that the grounds raised by Mr Goso meet the ‘proper and sufficient pleading test’.

14. I find that Mr Goso’s supporting affidavits support the grounds pleaded in the Statement in Support. I conclude that the grounds are arguable.

WHETHER THE PLAINTIFF HAS ‘EXHAUSTED ALL AVAILABLE ADMINISTRATIVE REMEDIES’

15. The law is that the applicant for leave must exhaust all the administrative remedies available to him before coming to Court to seek leave for judicial review: See the cases of The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417, and Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122. All available administrative avenues should first be exhausted.

16. Mr Goso’s supporting affidavit filed on 22^nd August 2022 show that he was elected by the Ward Councilors of the Gahuku Local Level Government as Head/President on or around 14^th August 2019. He was removed as the President by a vote of no confidence by the members of the Local Level Government on 24^th May 2022.
17. It is my view that there is no other administrative avenue that Mr Goso has to exhaust. He is properly before this Court to question the process leading up to his removal.

CONCLUSION

18. I conclude that Mr Goso has satisfied the requirements for leave. He is aggrieved by the decision to remove him. He has sufficient interest. There is no undue delay in bringing the application for leave. Based on the documents relied on, Mr Goso has an arguable case. He is properly before this Court. For these reasons, I will grant his application for leave for judicial review.

Court’s Formal Orders
19. I make the following orders:

1. The Plaintiff’s application for leave to proceed by way of Judicial Review is granted.

2. No order as to costs.

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
Kasito Lawyers: Lawyers for the Plaintiff
Sino & Associates Lawyers: Lawyers for the Defendants