N10270

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 41 OF 2023 (IECMS)

BETWEEN:
WILLIAM LAKAIN as the acting Managing Director of Climate Change & Development Authority
Plaintiff

V

SENIOR SERGEANT ANDREW WILFRED as the Acting Regional OIC CID Southern Region
First Defendant

AND

MR ALFRED RUNGOL
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Anis J
2023: 4 & 26 May

DECLARATORY & INJUCTIVE RELIEF – Substantive hearing – declaratory relief sought in official capacity – preliminary issue – whether plaintiff has capacity to sue – consideration – ruling on preliminary matter – remark – duty of police under law – policemen’s role – whether they have business to interfere with or assist citizens on their personal or private matters – word of caution

Cases Cited:

Kenn Norae Mondiai v Wawoi Guavi Timbers Co. Ltd (2007) SC886
Steamships Trading Limited v Garamut Enterprises Ltd (2000) N1959
Sampson v National Executive Council (2019) SC1880

Counsel:

M Wangatau, for the Plaintiff
P Ohuma, for the First and Third Defendants
H Monei, for the Second Defendant

JUDGMENT

26th May, 2023

1.	ANIS J:  This matter was trialed on 4 May 2023.  It was a contested hearing.  Evidence were tendered by consent of the parties without the benefit of cross-examination.  I reserved my decision thereafter to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The plaintiff ‘asserts’ that he is the Acting Managing Director of this public authority called Climate Change & Development Authority (the Authority).  I used the term ‘asserts’ because the defendants have raised challenges to the plaintiff’s position with the Authority and his capacity to commence this proceeding.  I will address them as the first issue.  But before I do so, and moving on with the background, the dispute that occurred that resulted in this proceeding is this.  The second defendant used to be employed as the Authority’s General Manager – MRV and NC division.  On 6 June 2022, he was terminated based on recommendation by the Authority’s Disciplinary Committee (DC).  Complaints that were laid against him that led to recommendation for this termination included workspace bullying, fist fight with a junior staff member whilst under the influence of alcohol, and a drink drive incident whilst on duty travel to Manus which had resulted in a claim of K340,000 against the Authority.

4.	According to the Authority, its decision to terminate was final because it was premised on a written contract that the Authority had signed with the second defendant.  The Authority informed the second defendant that if he had any issues, that he should seek his redress from the Court.

5.	The second defendant did not commence any legal proceedings to challenge his termination.  Instead, he wrote to various heads of departments including laying complaints with the police fraud squad.  He tried to negotiate his return to the Authority.  The Authority rejected outright his demand for reinstatement.  The Authority was later concerned when policemen were engaged or began to involve themselves in, what it claims, private affairs of the second defendant.  The Authority claims that members of the police force who were armed, had visited the office of the Authority on various occasions to, amongst others, demand the return of the second defendant back to his position of employment with the Authority.  The demands included a written letter dated 16 February 2023 by the first defendant to the plaintiff.  Thus, the Authority, seeking to protect itself as a corporate person that is established under legislation, namely, Climate Change (Management) Act 2015 (Climate Change Act), and also in protecting its staff members from harassment and intimidation, filed this proceeding on 1 March 2023.

6.	The main relief sought are as follows:

“1.	A declaration that the decision of the Managing Director of the Climate Change and Development Authority relating termination of the second defendant through termination notice dated 6th June 2022 shall be final and the second defendant may seek redress through the Courts in the event that the second defendant considers the disciplinary action to have been applied improperly or unfairly.

2.	A declaration that interference by the first defendant or any police personnel or any third party in disciplinary matters carried out by the Office of the Climate Change & Development Authority is illegal.

3.	A declaration that any actions taken against any party due to interference by the first defendant or any police personal shall be deemed void and of no legal effect.

4.	A declaration that those responsible for such interference in disciplinary matters carried out by the Office of the Climate Change & Development Authority shall be liable for damages suffered due to their actions,

5.	A permanent injunction restraining the first defendant and any police personal including their servants and agents from interfering, influencing, impeding or otherwise disrupting the performance of any disciplinary processes carried out by the Office of Climate Change and Development Authority.

6.	A permanent injunction restraining the first defendant and any of its police personnel, servants or agents from threatening, intimidating, ordering and directing the Plaintiff to reinstate the second Defendant to his position after he has been terminated from employment.
……”

PRELIMINARY ISSUE

7.	As a preliminary matter, the defendants argue that the plaintiff has no capacity or authority to commence the action because they claim that his term of appointment as the Acting Managing Director of the Authority expired before he had any authority to file this proceeding.

8.	I note that the parties had agreed or were aware that the issue would be raised as a preliminary matter at trial.  As such, I find the preliminary issue properly before me for consideration.

9.	Now, the parties are at common ground on the following.  Firstly, by NEC decision No. 200/2021, the plaintiff was appointed as the Acting Managing Director of the Authority for a fixed term of 1 year commencing on 28 July 2021 to 28 July 2022.  Secondly, the plaintiff terminated the second defendant on 6 June 2022 during his term as the Acting Managing Director of the Authority.  Thirdly, the plaintiff filed this proceeding after his 1-year term as the Acting Managing Director of the Authority as per the NEC Decision No. 200/2021 had formally expired.  Let me elaborate on the third common ground.  The plaintiff filed the proceeding on 1 March 2023, which was well after 28 July 2022, the latter being the expiry date of his term in office with the Authority.

10.	I note the submissions of the parties on this issue.  For the plaintiff, he submits that because there was a vacancy to the position of Managing Director of the Authority after his acting term had expired, that he continued to act in his capacity as the Authority’s Acting Managing Director.  Evidence adduced under Exhibit P3 shows that presently, there is an NEC submission that has been made or is in the process of being presented that recommends the plaintiff for the post of Acting Managing Director of the Authority for a further term of 1 year.

11.	The plaintiff also relies on laws such as s 20 of the Public Service (Management) Act 1995 (PSMA), s 8(1) of the Climate Change Act and s 254 of the Constitution.  I set them out herein respectively as follows:

“20.  Departments of the Public Service.

(1)  There shall be —
(a)	a Department of the Prime Minister and National Executive Council; and
(b)	a Department of Personnel Management; and
(c)	other Departments and Offices deemed to be Departments established under Subsection (2).
(2)  The Head of State, acting on advice, may, by notice in the National Gazette —
(a)	establish a Department or establish an Office and deem the Office as a Department; or
(b)	abolish a Department; or
(c)	alter the name of a Department other than the Department of Prime Minister and National Executive Council and the Department of Personnel Management.

……

8.  Establishment.

(1)  The Climate Change and Development Authority is hereby established.
(2)  The Authority —
(a)	is a corporation with perpetual succession; and
(b)	shall have a Seal; and
(c)	may acquire, hold and dispose of property and any other assets; and
(d)	may sue or be sued in its corporate name.

……

254.  Filling of offices, etc.

In principle—

(a)	no constitutional office shall be left unfilled on a substantive basis for longer than is necessary for it to be filled by an appropriate appointee; and
(b)	no person shall hold more than one public office at the same time except where one such office is so much associated with, or related to, another, or where the holding of one such office is so relevant to the holding of another, as to make it desirable that the offices be held jointly; and
(c)	public offices of similar importance or standing, and in particular offices in any statutory board or committee, should be filled by persons from the various areas of the country.”

12.	The defendants maintain that the plaintiff has no standing; that he is suing in his capacity as the Acting Managing Director of the Authority when his term has expired.  They bring to the attention of the Court, amongst others, s48 of the Climate Change Act.

13.	Section 48 in particular states:

“48.  Acting Managing Director.

(1)  In the event of incapacity through illness or the suspension from office of the Managing Director or removal, the Head of State, acting on the advice of the National Executive Council, may appoint a person, who is to be known, and is referred to in this section as the Acting Managing Director, to perform the functions of the Managing Director.

(2)  An Acting Managing Director shall not hold the office of the Managing Director for a term in excess of 12 months.” [Underlining mine]

14.	I observe that the legislation is certain on the term of appointment of an Acting Managing Director of the Authority.  A managing director shall not hold office…for a term in excess of 12 months.  In the present matter, the plaintiff’s term expired before he commenced this proceeding.  As such and based on s48(2), he ‘does not appear’ to have status or capacity of an acting managing director of the Authority after his term expired on 28 July 2022.  I must however caution myself that I cannot make a definite finding on this, that is, on whether the plaintiff currently holds a valid post as the Acting Managing Director of the Authority as the issue is not central to this hearing.  As such, I refuse to ‘dive deep’ into the issue despite submissions made by the parties in that regard except to an extent as I will explain below.

15.	Let me also refer to s 8(2) of the Climate Change Act which I have stated above herein.  By law, the Authority is a corporation.  It is a separate legal person which is recognized under law with perpetual succession.  It may acquire, hold, and dispose of property, and it can sue or be sued under its name or style.  It therefore begs the question of whether the plaintiff had received authority or permission from the Authority before commencing the proceeding in this manner.  Also, I ask myself this.  Why did the Authority not commence the proceeding on its own accord if the issues as raised by the plaintiff had affected it?  It clearly appears that the plaintiff is presenting himself herein as acting for or on behalf of the Authority.  However, there is no evidence adduced herein which states that the Authority had instructed the plaintiff to bring the action in this manner or on its behalf.

16.	I note the submissions of the plaintiff where he states that he has sufficient interest to bring this proceeding in both his personal and official capacities.  Counsel also referred to judicial review cases including Kenn Norae Mondiai v Wawoi Guavi Timbers Co. Ltd (2007) SC 886, Steamships Trading Limited v Garamut Enterprises Ltd (2000) N1959 and Sampson v National Executive Council (2019) SC1880 to support the plaintiff’s claim on sufficient interest.  With respect, I find the plaintiff’s argument both misconceived and baseless.  This is not a judicial review proceeding.  The issue of sufficient interest does not arise.  Rather, what arises here as a material issue is, capacity to sue.  Premised on the pleadings and the name of the plaintiff as registered and filed, the plaintiff is not suing in his personal capacity but rather in his official capacity.  He cannot argue otherwise than what is already pleaded in the Originating Summons.  He describes himself therein as William Lakain as the acting Managing Director of Climate Change & Development Authority.  So, that is the premise or capacity in which the plaintiff is suing the defendants under. 

17.	I also do not find any of the provisions referred to by the plaintiff such as s 20 of the PSMA, s 8(1) of the Climate Change Act and s 254 of the Constitution useful or relevant at this time that would assist the plaintiff’s cause on the preliminary issue.  I will again emphasis that I am not being asked here to make a substantive determination on the legal status of the plaintiff’s employment with the Authority.  These provisions or arguments may be relevant, but perhaps at another forum at an appropriate time.  To fully determine the merits of the argument now, in my view, would be to make a finding on matters that are not properly before me.  I also note that there is no crossclaim filed by the defendants to formally raise the issue.  However, and as stated, it had been raised as an issue earlier, and by consent or common understanding of the parties, it was permitted to be raised as a preliminary issue at the trial.

FINDING

18.	Therefore, as far as the plaintiff’s capacity to bring this action for and on behalf of the Authority is concerned, I make this finding.  I am satisfied that the defendants have discharged their burden of proof on the matter, that is, in establishing that the plaintiff has a case to answer, that is, on whether he has the capacity to sue or commence the proceeding for or on behalf of the Authority.  The burden then shifted to the plaintiff.  However, based on the evidence that have been adduced by both parties and submissions, I am not satisfied that the plaintiff has established or disproved this claim by the defendants.  In my view, the plaintiff has failed to establish that he has the capacity to sue for and on behalf of the Authority.  None of the provisions and laws that he has relied on supports his standing or capacity to sue for and on behalf of the Authority.

SUMMARY

19.	Consequently, I am not persuaded that the plaintiff has provided sufficient evidence to establish his capacity to sue on behalf of the Authority.  As I have stated, this is not a hearing to decide on whether the plaintiff is or continues to be the duly appointed Acting Managing Director of the Authority.  On the question of capacity to sue however, the evidence that have been adduced shows that:

•	the plaintiff’s Acting Appointment ended before he commenced this proceeding;
•	the Authority, which has a status of a corporate legal entity, did not give any express authority to the plaintiff to sue in the manner as he has done in this case;
•	the plaintiff is purportedly suing only in his official capacity and not his personal capacity.

20.	This proceeding will therefore fail and will be dismissed.  For clarity, let me also say this.  The decision of this Court in dismissing the proceeding does not in any way exonerate the second defendant from the actions taken by the Authority in terminating him.  The decision by the Authority would remain binding until it is formally determined by another Court or tribunal of competent jurisdiction.

REMARKS

21.	Let me make the following remarks.  First, I notice that the Authority appears to have already made its position known clearly to the second defendant, which is that its decision was final premised on the contract of employment.  The Authority had informed the second defendant to take Court action as his option if he was unhappy with the disciplinary findings made against him.  

22.	Instead of taking the legal options available to him, evidence adduced shows that the second defendant had, amongst others, engaged assistance of police personnel to pursue his private matter, and in that regard, I must expressly state here with concern the involvement of the first defendant Senior Sergeant Andrew Wilfred.  It was the actions of the second defendant and these policemen including Sergeant Andrew Wilfred, that had prompted the plaintiff to file the proceeding in the first place and to obtain interim restraining orders against the defendants.  Such actions by policemen must not be tolerated.  At the hearing, I had put to counsel for the second defendant that it was not the primary role of policemen to pursue personal interest for or on behalf of persons to resolve personal matters, or to intimate or harass persons without lawful cause.

23.	As I had indicated to counsel, such actions, if true, would not only be illegal but dangerous to society at large and to the rule of law.  Imagine a society where policemen are used to resolve personal issues or agendas.  For example, if a public or a private person is terminated from employment, why bother with the rule of law when he or she could simply use the policemen to order or demand the employer to reinstate him or her with actual or implied threat of reprisals or arrests if the demand is not met.  When such actions or practices are permitted in any democratic society, it can only lead to one outcome, tyranny. 

24.	I have not heard and decided on the substantive matter.  As such, the first defendant and the policemen allegedly involved are not found liable in the matter in any way whatsoever.  But the remark is made given the serious nature of the allegations that have been raised by the plaintiff which will now not be heard on their merits.  

25.	And with that, let me send out a stern warning to the defendants, and this is made as a remark, to observe the rule of law.

COST

26.	An order for cost is discretionary.  

27.	I see and also observe genuineness, that is, regarding the intention of the plaintiff and of the action.  The plaintiff served as the Acting Managing Director of the Authority at the material time.  His action was intended not for his personal benefit but for the benefit of the Authority, especially for the security and wellbeing of the staff and people that served under it.

28.	I will therefore order that each party shall bear their own costs of the proceeding.

ORDERS OF THE COURT

29.	I make the following orders:

1.	The proceeding is dismissed in its entirety.

2.	Parties to bear their own costs of the proceeding.

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

The Court orders accordingly

________________________________________________________________
Ace:	Lawyers for the Plaintiff
Solicitor General:	Lawyers for the First and Third Defendants
Valorem Attorneys:	Lawyers for the Second Defendant