N10520

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 53 OF 2023

JOHN ONDALANE As Appointed Representative of Porgera Landowners Association to PORGERA LOCAL LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
First Plaintiff

AND
FREDRICK IPARA As Appointed Representative of Porgera Landowners Association to PORGERA LOCAL LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Second Plaintiffs

V

HON SOROI EOE MP, AS MINISTER FOR INTER GOVERNMENT RELATIONS
First Defendant

AND
DEPARTMENT OF PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
ANAKO AIYALA, DAVID MAPULI & MOSES PEARA As Nominees of Paiela Hewa and Porgera local level Governments to PORGERA LOCAL LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Fourth Defendant

AND
NIXON MANGAPE, HENRY LARA, MARK EKEPA & ELIZABETH LAPE As Representatives of Porgera Landowner Association to PORGERA LOCAL LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Fifth Defendant

Waigani: Miviri J
2023: 04th,13th & 16th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Leave Application for Judicial Review – Decision of Inter Government Relations Minister Endorsing Fourth & Fifth Defendants Members of LLG Porgera – Whether Res Judicata – Whether Same Cause of Action Determined Earlier by this Court – Form Not Merits Determined – Undue Delay – Arguable Case – Failure to Swear Oath of Office – Dominus Status Locus Standi – Procedure Section 4 (3) Constitution of Porgera Special Purposes Authority In Complete – Application Sustained – Leave Granted – Costs In the Cause.

Cases cited:
Hamaka v Dion [2016] PGNC 60; N6249 
GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690 
Christian v Namaliu [1996] PGSC 34; SC1583
State and Sali v Sisia [1987] PNGLR 10
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 

Counsel:
P Harry, for the First Plaintiffs
R. Uware, for the First, Second & Third Defendants
Y. Kipili, for Fourth Defendant
J. Nandape, for Fifth Defendant.

RULING

16th October 2023

1.	MIVIRI, J: This is the ruling on the plaintiff’s originating summons filed of the 05th June 2023 pursuant to Order 16 Rule 3 (1) & (2) of rules for leave for Judicial Review against the decision of the First Defendant made by Instrument of Appointment dated 23rd November 2022 that endorsed the Fourth and the Fifth Defendants as members of the Porgera Local Level Government Special Purposes Authority Management Committee. 

2.	It is supported by the order 16 Rule 3 (2) (a) Statement of the 05th June 2023, with affidavit verifying those facts pleaded within. Together with the affidavits of the plaintiffs filed of the 13th June 2023 addressing issue of Res Judicata sworn to by Fredrick Ipara of the 12th June 2023. This subject is also covered by the affidavit sworn of the 19th June 2023 filed of that date by Lawyer Paul Harry. Including an affidavit by Plaintiff John Ondalane sworn of the 10th July 2023 filed of that date. Who also has another affidavit sworn of the 04th June 2023 filed of the 05th June 2023. 

3.	 The subject decision for leave for Judicial review is by the Minister for Inter Government Relations Honourable Soroi Eoe made on the instrument of appointment dated the 23rd November 2022 which endorsed the fourth and fifth defendants as members of the Porgera Local Level Government Special Purpose Authority.
 
4.	The Plaintiff contends that on the 11th June 2021 the former Minister for Inter Government Relations Hon. Pila Ninigi endorsed the Fourth Defendants excluding Jones Pawe as members of the Authority. He did not endorse the Plaintiffs with two others who were duly appointed by the Porgera Landowners association and who were endorsed by Hon Kevin Isifu by the Instrument of appointment of the 08th February 2019. The Deputy Chief Justice Kandakasi in OS (JR) No. 52 of 2021 declared the appointment of the Fourth Defendant amongst others as unlawful null and void because they were not qualified to be appointed. They did not meet the mandatory requirements of educational qualifications under section 8 (1)(e) of the Constitution of the Authority. That decision was appealed to the Supreme Court in SCM No 65 of 2021, annexure “JO22” on the 05th December 2021. It was heard by Justice Hartshorn on the application for Stay, but he dismissed it, Annexure “JO23”.

5.	Reappointment of Moses Peara, Jones Pawe, David Mapuli and Anako Aiyala as LLG nominees to the authority was made by the Porgera LLG and Paiela Hewa LLG on the 08th April 2023 and the 12th April 2023. And this was made whilst SCM No. 65 of 2021 was on foot and the subject of their appointment was subjudice. The appointment of the fourth Defendant was null and void of no effect reaffirmed and declared on the 10th May 2022 by Acting Justice Linge confirming the Deputy Chief Justice Kandakasi’s Order, Annexure “JO20 & JO21”. And on the 02nd June 2023 Justice Collier when granting the Association’s joinder application in SCA No 7 of 2022 ordered that the Court noted that there is a dispute to the executive members of the Association, annexure “JO16”.

6.	On the 10th August 2022 Deputy Chief Justice Kandakasi stay the proceedings OS No 124 of 2022 the association had filed pending the determination of the Supreme Court Appeals SCA Nos. 66, 96, 131 of 2021 and SCA No 7 of 2022 because it was not clear who were the members of the Association, annexure “JO17”.

7.	On the 26th August 2022 the Association breached the orders of the Deputy Chief Justice Kandakasi of the 10th August 2022 and appointed the fifth Defendants as its representatives to the Authority, annexure “JO18”. And on the 23rd November 2022 the first Defendant endorsed the appointment of the fourth and fifth defendants as members of the Authority, annexure “JO4”. Two days later on the 25th November 2022 Moses Peara, David Mapuli and Anako Aiyala discontinued their Appeal SCM No. 65 of 2021, annexure “JO24”.

8.	The Assistant Secretary of the Measurements Services Division of the Department of Education one Mr Pakiam Arulappan verified that the contents of the grade 10 and 12 certificates of Anako Aiyala and David Mapuli were altered and not true copies of the original documents, annexures “JO26, JO27, JO8 and JO29” SCM No 65 of 2021 was dismissed by Justice Cannings on the 09th March 2023.

9.	These material facts are verified pleaded out in the Statement pursuant order 16 Rule 3 (2) (a) of the Rules filed as of the 05th June 2023. And verified by the affidavit verifying of the 04th June 2023 by the plaintiff. It is clearly arguable that by section 45 (4) of the Local Level Government Administration Act 1997 the actions of the Minister were ultra vires his powers there to revoke the appointment of the plaintiffs and two others. Because they were arguably duly appointed and endorsed by in a valid instrument of appointment dated the 06th July 2022. They were the Associations representatives to the Authority. The Minister did not have the power to do what he did: Hamaka v Dion [2016] PGNC 60; N6249 (11 April 2016).

10.	So, in making the appointments the minister First Defendant had breached existing Court Order of the 10th August 2022 that had stayed the proceedings in OS No 124 of 2022 by Deputy Chief Justice Kandakasi, because it was not clear who were the legitimate members of the Association pending the determination of the Supreme Court appeals SCA Nos 66, 96, 131 of 2021 and SCA No 7 of 2022, annexure “JO17”. It followed that when the association appointed Nixon Mangape, Henry Lara, Mark Ekepa and Elizabeth Iarume that was in breach of the orders that Deputy Chief Justice Kandakasi had issued so that the Ministers endorsement was invalid and void of no effect. Further breach of Court Order by the Minister First Defendant was the orders issued by Justice Collier on the 02nd June 2022 in SCA No 7 of 2022 where it was declared that, the membership of the Executive of the Porgera Landowners Association Incorporated is in dispute in this Appeal”. Because of that fact there was no proper authority and the appointments of Nixon Mangape, Henry Lara, Mark Ekepa and Elizabeth Iarume of the 26th August 2022 was invalid void and of no effect.

11.	It remained further that the First Defendant the Minister had breached yet another Court Order issued by Deputy Chief Justice Kandakasi in OS (JR) No. 152 of 2021 where declaration there was made that the appointments of Thompson Kulara, Moses Peara, Anako Aiyala and David Mapuli were unlawful null, and void having failed to meet the educational requirements mandatory under section 8 (1)(e) of the Constitution of the Authority effectively precluding them of being considered in the appointment. The endorsement by the Minister was invalid void of the appointments and of no effect. And it fell similar in OS No 127 of 2021 of the 10th May 2022 where Acting Justice Linge declared that the appointments Anako Aiyala, David Mapuli and Monica Nita null and void of no effect affirming the Deputy Chief Justice’s orders.

12.	And it was an improper exercise of discretion by the First Defendant the Minister in his decision of the 23rd November 2022 when he failed to take into account the appeal SCM No. 65 of 2021 as relevant consideration on the appointments of Peara, Aiyala and Mapuli. In so doing he pre-empted the outcome of the appeal interfering with the due administration of Justice rendering the appeal a nugatory. 

13.	The aggregate apparent is that the Minister has unlawfully endorsed David Mapuli and Anako Aiyala who for the reasons set out above do not bear the qualifications to be considered as did the Minister. The defiance of Court Orders in their hands compounded by the actions of the Minister do not make it worthy that they be endorsed as he did. Particularly against the assertions in respect of the educational qualifications they rely on to sustain the appointments. Allegations that are of bad repute pertaining to criminal offences.

14.	The applicant urges that these are very strong arguable basis which discharges this ground in his favour. The defendants argue that this ground has not been made out to the required balance this is a matter that came before this Court on the 13th and 28th April 2023. It was considered and summarily dismissed pursuant to Order 16 Rule 13 (13) (2) (a) of the rules in that there was failure to file the affidavit verifying facts with respect to the amended Statement filed on the 08th of March 2023 rendering the application for leave incompetent. The said application for leave was summarily dismissed pursuant to Order 16 Rule 13 (13) (2) (a) of the Rules.

15.	Against this argument the plaintiff contends that the merits were not determined to come with the decision. It was to form and so was open to be lodged as it is now. In support plaintiff has filed two affidavits to this effect, Res Judicata sworn to by Fredrick Ipara of the 12th June 2023. Which subject is also covered by the affidavit sworn of the 19th June 2023 filed of that date by Lawyer Paul Harry. Including an affidavit by Plaintiff John Ondalane sworn of the 10th July 2023 filed of that date. What comes out predominantly here is GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690 (12 July 2018) setting that where the merits of the case have not been dealt with, the matter is open to be filed for reconsideration as is the case here. The issues raised by the matter have not been judicially considered so that a determination is made based on it Christian v Namaliu [1996] PGSC 34; SC1583 (18 July 1996). This is the law and considered here it is not res judicata because the affidavit verifying the facts was not filed so dismissal eventuated. It was not res judicata because the merit of the case was not determined. It remained to come as it did now. The application remains competent and will be determined on its merits as filed here and now. That will fail the argument of the defendants. What remains is that the case as it is set out above for the plaintiff is arguable and makes that ground out in his favour.
 
16.	The defendants argue that there is delay in two (2) months over the four (4) months set out by order 16 Rule 4 (2) of the Rules and so time bars this application and leave be refused on that basis. The plaintiff counts that on the 23rd November 2022 the First Defendant signed the Ministerial Instrument subject of this judicial review. On 2nd March 2023 the plaintiffs filed for judicial review in OS JR No 16 of 2023. On the 30th April 2023 that was dismissed, by this court on a technicality. That same application is now filed by the same parties. In my view it is not an inordinate delay given. And the arguments set out above bear that time has not prejudiced the cause of the plaintiff. Denying him on the basis of time will deny Justice because of the arguable basis set out above. The reasons accorded equate that a hearing be accorded the plaintiff: State and Sali v Sisia [1987] PNGLR 102. The period here was a delay of five and a half years between the Minister’s decision and the application to the court. It was unreasonable compared to the present. Accordingly, this requirement is discharged on the balance of probabilities.

17.	There is no room for other remedies internally and this is satisfied that the plaintiff is properly before this court. Because Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Further he has locus standie given all set out above. All requirements for leave for Judicial review has been satisfied discharging the balance in his favour. Leave is according granted for Judicial review. He will file and serve the substantive Notice of motion by or before Monday 30th October 2023. The matter will be called at directions on Monday 06th November 2023 at 9.30am for further directions.   

18.	The formal orders of the Court are:

(i)	Leave is granted for Judicial review.
(ii)	The plaintiff will file and serve the substantive Notice of motion by or before Monday 30th October 2023.
(iii)	The matter will be called for Directions on Monday 06th November 2023 at 9.30am. 
(iv)	Costs will follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
Harry Lawyers: Lawyers for the Plaintiff/Applicant		
Office of the Solicitor General: Lawyers for the Applicant/Defendant