PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Papua New Guinea
You are here:  PacLII >> Databases >> Supreme Court of Papua New Guinea >> 2006 >> [2006] PGSC 15

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 (4 August 2006)

SC844


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA No. 61 OF 2006


BETWEEN:


WILLIAM POWI - Acting Administrator for Southern Highlands Province
- First Appellant-


AND:


SIR MICHAEL SOMARE in his capacity as Chairman for and on behalf of the members of the National Executive Council
- Second Appellant-


AND:


JOSHUA KALINOE in his capacity as Chairman of the Central Agencies Co-coordinating Committee Secretariat
- Third Appellant-


AND:


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
- Fourth Appellant-


AND:


SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
- First Respondent-


AND:


HON. NIPA HAMI YAWARI - PROVINCIAL GOVERNOR OF SOUTHERN HIGHLANDS PROVINCE
- Second Respondent-


AND:


BRIAN PEBO - PROVINCIAL ADMINISTRATOR FOR SOUTHERN HIGHLANDS PROVINCE
- Third Respondent-


Waigani: Jalina, Gavara-Nanu
& Kandakasi JJ
2006: 26 July, 4 August


PRACTICE & PROCEDURE - Application to vary or discharge orders of single judge Supreme Court -Jurisdictional basis - Specific provision made under relevant and applying legislation - Applicant deliberately decided not to utilize available avenue or provisions and choosing instead to use s. 155 (4) of the Constitution - Application amounts to an abuse of the Courts process and misconceived - Court has power to dismiss such proceedings - Application dismissed - Sections 5 (3) and 10 (2) of the Supreme Court Act - Section 155(4) of the Constitution.


JURISDICTION - Jurisdiction to vary or discharge interim orders or directions of a single judge of the Supreme Court - Full Court has jurisdiction at the time of hearing and determining the substantive matter unless there is serious prejudice occasioned to the parties rights in the substantive matter and urgent intervention is required - Sections 5(1)(a) and (3) and s 10 (2) Supreme Court Act.


WORDS & PHRASES - "Supreme Court" or "Court" - Unless the contrary intention is clearly stated, it means the full Court of the Supreme Court and not a single judge of the Supreme Court who may constitute the Supreme Court - Sections 1 and 5 and 10 Supreme Court Act .


Cases Cited:
The State v. Donald Poni (22/09/04) N2663.
Re Application by Anderson Agiru (08/10/01) SC671.
Application of John Mua Nilkare (15/04/97) SC536.
Avia Aihi v. The State [1981] PNGLR 81.
Re Application of Louise Autsila Ainie on Behalf of The Rarai Village Ugauga Sub-Clan of Ikoiko Clan, Central Province for Leave for Judicial Review (14/04/04) N2533.
Kiau Nikints v. Moki Rumints [1990] PNGLR 123.
Samson Dacany v. Noah Taia of The National Fisheries Authority (13/12/02) N2316.
SCR No 2 of 1981; Re S19(1)(f) of the Criminal Code (Ch262) [1982] PNGLR 150.
Bill Skate and Peter O'Neil v. Jeffrey Nape, Speaker of Parliament (09/07/04) SC754.
Norah Mairi v. Alkan Talolo & Others [1976] PNGLR 59.
SC Review No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170.
The Independent State of Papua New Guinea v. John Tuap (27/10/04) SC765.
Wau Ecology Institution v. Registrar of Companies (12/08/05) SC794.
SCR 8 of 2003; Application by Anderson Agiru (11/04/03) SC704.


Counsels:
M. Tamutae, for the Applicant/ Third Respondent.
P. Korowi, for the First and Second Respondents.
K. Naru, for the First Appellant/First Respondent.
S. Singin, for the Second Appellant/Second Respondent.
M. Kias, for the Third and Fourth Appellant/ Third and Forth Respondent.


4 August, 2006


1. BY THE COURT: By an amended notice of motion filed on 24 July 2006, the Third Respondent/Applicant (applicant) seeks a number of orders or reliefs which effectively seek to vary or otherwise discharge orders made by Justice Los as a single judge of the Supreme Court on 12 July 2006. The applicant claimed there was some urgency in the matter and that caused the Chief Justice to constitute this Court as a special Supreme Court to deal with the application.


Issue - Jurisdiction


2. The Court convened and started to hear the application on Wednesday 26 July 2006. The first issue the Court had to deal with was the preliminary issue of the Court's power to deal with the application in the way asked for by the applicant. His Lawyer, Mr. Tamutai submitted that the Court has jurisdiction under s. 155(4) of the Constitution to hear and determine his client's application. In the course of his submissions he abandoned reliance on s. 5 (3) of the Supreme Court Act[1] (the Act). He also abandoned most of the reliefs sought in his client's amended motion. That effectively left his client's application to only seeking a variation or discharge of the orders made by Los J, arguing that, His Honour, did not have the jurisdiction to make such orders. On closer enquiry by the Court however, the applicant narrowed down his concern to only Los J's decision to allow the appellant, Mr. Powi to act in the position of Administrator of the Southern Highlands Province, pending a determination of the substantive appeal.


3. The Appellants/Respondents argue that s. 155(4) does not apply in the light of specific provisions being made in the Supreme Court Act for the kind of relief sought by the applicant. Further, they submit that the applicant has failed to make out a case even under s. 155 (4) in order to enable this Court to grant the kind of relief sought by the applicant. Therefore, they submit that the application is an abuse of the Court's process and is without any merit. Hence they submit that, the application must be dismissed.


4. From these arguments, there are two issues for us to determine. These are:


  1. Is s. 155(4) of the Constitution applicable to the particular circumstances of this case? and
  2. If the answer to the first issue is in the affirmative, has the applicant made out a case for the application of s. 155 (4) of the Constitution?

Relevant Facts or Background


5. In order for us to properly appreciate these issues and determine them, it is necessary for us to appreciate the factual background to the application. From the material before us, we note that the relevant facts and or chronology of events start with the National Executive Council (NEC) on 17 May 2006, making decision No. 96 of 2006 by which, the appointment of Mr. Brian Pebo as Administrator of Southern Highlands Province was revoked and appointed Mr. William Powi as Acting Administrator of that Province. At the same time, the NEC appointed an Independent Investigation Team to investigate into the affairs of the Southern Highlands Province. This was confirmed by gazettal on 23 May 2006, in the National Gazette No. G104 of 2006.


6. It seems, Mr. Pebo continued to occupy and exercise the powers and functions of the Provincial Administrator of the Southern Highlands Province. Mr. Powi therefore, took out proceedings OS No. 370 of 2006 - William Powi v. Brian Pebo out of the National Court in Waigani on 25 May 2006. On the same day, he applied for and obtained interim ex parte restraining orders against Mr. Pebo before Justice Lay. Those orders restrained Mr. Pebo from exercising the powers and functions of the Provincial Administrator for Southern Highlands Province. The orders were made returnable on 8 June 2006 at 9:30 am.


7. On 26 May 2006, Mr. Pebo took out proceedings OS No. 374 of 2006 out of the National Court then circuiting in Mendi, seeking a review of the decision revoking his appointment and appointing Mr. Powi as acting Southern Highlands Provincial Administrator. By that time, Mr. Pebo, was not served with the orders of the National Court sitting in Waigani. On the same day of the filing of his proceedings, Mr. Pebo and his lawyers appeared before His Honour Hinchliffe J., and obtained interim injunctive orders against Mr. Powi and the other appellants/respondents before us. Those orders were returnable before the National Court in Mt. Hagen on 31 May 2006.


8. The proceedings issued initially out of the National Court on circuit in Mendi did not name Mr. Powi as a party, although he was directly affected as the incoming acting Provincial Administrator for the Southern Highlands Province. Eventually, Mr. Powi became aware of the proceedings and the orders taken out in favour of Mr. Pebo. Hence, on the return of those orders on 31 May 2006, Mr. Powi appeared to apply for and be joined as a party. However, following no appearance for the State, the Court adjourned the matter to 14 June 2006.


9. On 14 June 2006, all of the parties appeared for His Honour Hinchliffe J., and fully argued before His Honour, Mr. Pebo's application for leave for judicial review as well as an application by Mr. Powi seeking to set aside and or discharge the ex parte interim restraining orders made by Hinchliffe J., on 26 May 2006 in proceedings OS No. 374 of 2006. His Honour after having heard arguments from the parties, decided on the same day to grant leave for Mr. Pebo to proceed to judicial review and reserved on Mr. Powi's application seeking to set aside or discharge the orders of 31May 2006. Eventually, on 21 June 2006, His Honour, Hinchliffe J., decided against the application to set aside and or discharge the interim orders he made on 31 May 2006. This effectively allowed for Mr. Pebo to continue as Provincial Administrator for the Southern Highlands Province.


10. On 28 June, 2006, Mr. Powi, lodged an application for leave to file an appeal against Hinchliffe J.'s decision and for consequential interim orders, in particular orders to stay the proceedings initiated out of the National Court on circuit in Mendi. That application was heard on 10 of July 2006 with a decision delivered on 12 July 2006. In the meantime, His Honour, Hinchliffe J., proceeded to conduct the substantive review before him on 4 July 2006 and adjourned the proceedings to 11 July 2006, for a decision. By 11 July 2006, His Honour Hinchcliffe J., received information about the proceedings before the Supreme Court and correctly in our respectful view decided to adjourn his decision sine die, pending a conclusion of the Supreme Court proceedings.


11. The Supreme Court decision, per Los J., decided to grant leave to Mr. Powi to lodge an appeal against the decision granting Mr. Pebo leave to proceed to a judicial review of the decision revoking his appointment and appointing Mr. Powi as the acting Administrator of the Southern Highlands Province. At the same time, His Honour ordered that, the orders and proceedings before, Hinchliffe J., be stayed pending a determination of the appeal. His Honour further ordered that Mr. Powi continue as acting Provincial Administrator of the Southern Highlands Province.


12. Being aggrieved by the decision of the Supreme Court, particularly the decision allowing Mr. Powi to continue as acting Administrator of the Southern Highlands Province, Mr. Pebo filed the application now before us. He takes no issue that, Los J., sitting as a single judge of the Supreme Court did have the jurisdiction, to hear and determine the application for leave to appeal and make the consequential orders. His concern was the order allowing Mr. Powi to continue as Provincial Administrator.


Addressing the Issues


13. We propose to consider the issues raised in the application and determined them having regard to the relevant facts and the relevant law in the order we have set out above. We start by asking: "Is s. 155(4) of the Constitution applicable to the particular circumstances of this case?


(a) Is s. 155 (4) of the Constitution Applicable?


(i) The Law on s. 155 (4)


14. As section 158 (1) of the Constitution provides, the judicial power that the Courts exercise belongs to the people, through the Constitution[2]. Hence, all Courts, including the Supreme Court, are creatures of statue, starting with the Constitution at the highest. They are required to and can only exercise their powers within the parameters of their enabling legislation.[3]


15. In the case of the Supreme Court, section 155 (1) (a), (2) and (4) of the Constitution are relevant. The first sub-section establishes the Supreme Court as part of the National Judicial System. The next subsection then provides that the Supreme Court is the final court of appeal[4]. It also stipulates that the Supreme Court has the power to review all judicial acts of the National Court[5]. Then subsection (2) (c) provides that the Supreme Court "has such other jurisdiction and powers as are conferred on it by this Constitution or any other law." Finally, subsection (4) vests the Supreme Court with:


"an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."


16. It would appear that this provision concerns remedies only and is not about a creation of and grant of any right to any person. It grants the Court two categories of power or jurisdiction. These were discussed in a number of decisions of both this Court and the National Courts, including the decision of this Court in SCR No 2 of 1981; Re S.19 (1) (f) of the Criminal Code (Ch262)[6]. The two types of powers are first in the nature of prerogative writs. The second power comes from the words "such other orders". This power is there to enable the Court to make "such other orders as a necessary to doing justice in the circumstances of a particular case" before the Court, provided the exercise of that power is only remedial in nature and is aimed at protecting and or enforcing the rights of parties granted by other law.


17. Bredmeyer J. succinctly put the position in this way in Aundak Kupil v. The State[7]:


"... cases have decided that the latter words [of s. 155 (4)] are disjunctive from the former, that is the latter orders do not have to be in the nature of prerogative writs. The section is a grant of power or of jurisdiction. It does not affect the primary rights of parties which are determined by the substantive law. It is no warrant for the court allowing a new cause of action for example. The section encompasses remedies, adjectival and procedural orders. It enables the court to tailor its remedies to the circumstances of an individual case to ensure that the primary rights of a party are protected".


18. Or in other words as Kidu CJ, said in SCR No 2 of 1981; Re S.19 (1) (f) of the Criminal Code (Ch262)[8]:


"The provision under reference ... does not ... vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement."


19. As may be apparent from this, s. 155(4) does not apply if there is already a remedy provided for by any other law. This was acknowledged in Mauga Logging Company Pty Limited v. South Pacific Oil Palm Development[9] in the context of any interlocutory relief. There the Court said:


"Where a case for interlocutory relief falls within the well established principles of equity, there is no need for the claimant to have recourse to s 155 (4)."


20. And this Court said quite recently in Bill Skate and Peter O'Neil v. Jeffrey Nape, Speaker of Parliament,[10]


"It [s.155(4)]is not intended to cover every situation. If this was the case, s 155 (4) would override specific provisions of the law. In Avia Aihi v The State [1981] PNGLR 81 the Court held that s 155 (4) of the Constitution could not override the provision of the Supreme Court Act on the 40 days period in which to appeal against the decision of the National Court. The specific provision dealing with interim orders pending determination of an originating process under s 18 (1) of the Constitution is expressly provided for under O 3 r 2 (b) of the Supreme Court Rules. Section 155 (4) of the Constitution can have no application to the interpretation of O 3 r 2 (b) of the Rules. Whether or not interim order should be made in any case is determined by the words "prejudice to the claims of the parties" and not on any general notion of justice under s 155(4) of the Constitution. We reject the submission based on s 155(4)."


21. In that case, the plaintiffs, sought to invoke s. 155(4) of the Constitution by arguing for a wider meaning to be given to the words used in O.3 r.2(b) of the Supreme Court Rules, to allow for interim orders to be granted to avoid prejudice to speculative and public interests without any evidence of any personal prejudice to the parties before the Court.


22. The Court noted the kind of cases the Supreme Court had jurisdiction to deal with and made reference to s.6 (1) (b) of the Supreme Court Act, which is expressed in the same terms as s 5(1)(b) of the Supreme Court Act. The Court also referred to the case of Norah Mairi v. Alkan Talolo & Others[11], which involved a reservation of a point of law for decision by the Supreme Court under the then equivalent of s. 5 of the Supreme Court Act. There, Frost CJ considered a motion for interlocutory orders pending a consideration and determination of points of law reserved for the Supreme Court. His Honour made reference to the then equivalent of s. 6 (1) (b) of the Supreme Court Act and proceeded to develop a principle of underlying law in relation to interim orders pending the determination of the substantive proceedings brought under s. 5 of the Supreme Court Act. The judgment of this Court in Bill Skate and Peter O'Neil v. Jeffrey Nape, Speaker of Parliament[12], was that the decision in the Norah Mairi v. Alkan Talolo & Others[13], represented a correct application of s. 155 (4) of the Constitution because there was a vacuum that had to be filled.


23. It had in fact had established earlier on in SC Review No 4 of 1990; Application by Wili Kili Goiya[14], that s.155 (4) does not support the proposition that a Supreme Court can review a decision of a differently constituted Supreme Court. It said:


"If that were so, it could also be said that the National Court could review a decision of another National Court decision in the same manner. ...There are limited circumstances provided in the law where the Supreme Court and the National Court can review their own decisions. Under s 10 of the Supreme Court Act (Ch No 37), a single judge of the Supreme Court may exercise the powers of the Supreme Court. Under s 10 (2) of the Act, if the application is refused, a party then may apply to the Supreme Court. Under O 12 of the National Court Rules, a party may apply to the National Court to set aside an order made by another National Court if it is a default judgment or made ex parte."


24. There is therefore, no room for argument in our view that, regardless of however the Supreme Court is constituted, there is no power in the Supreme Court to review the decision of another Supreme Court except as may be provided for by, any other law, such as the Supreme Court Act itself.


25. From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:


  1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make "such other orders as a necessary to do justice in the particular circumstances of a case" before the Court;
  2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
  3. Where remedies are already provided for under other law, the provision does not apply;
  4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number it is constituted, except as may be provided for by any law; and
  5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.

(ii) Application of the Law on s. 155 (4) to the Facts


26. The application before us is made under s. 155 (4) of the Constitution by way of an interlocutory application for a variation or discharge of an earlier interim order by a single judge of Supreme Court as we have earlier alluded to. The substantive matter is an appeal against a decision of the National Court granting the applicant, Mr. Pebo, leave to proceed to judicial review of a decision by the second, third and fourth respondents to revoke his appointment and in his stead appoint Mr. Powi as Acting Administrator of the South Highlands Province.


27. Sections 5 and 10 of the Supreme Court Act are relevant and are both applicable. These provisions read:


"5. Incidental directions and interim orders.

(1) Where an appeal is pending before the Supreme Court-

(a) a direction not involving the decision on the appeal; or

(b) an interim order to prevent prejudice to the claims of the parties; or

(c) an order in any proceedings (other than criminal proceedings) for security for costs; or

(d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or

(e) an order admitting an appellant to bail,

may be made by a Judge.

(2) A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.

(3) A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court."


"10. Powers that may be exercised by Judge.

(1) Any power of the Supreme Court under this or any other Act-

(a) to give leave to appeal; or

(b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court.

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court."

(Emphasis supplied)


28. It is clear to us that both of these provisions deal with appeals to the Supreme Court. They both grant powers to a single judge of the Supreme Court to make the kind of orders specified in these provisions. Of particular relevance to us is s. 5 (1) (b) and (3) and s. 10 (1) (a) and (2). Under s. 5 (1) (b) a single judge of the Supreme Court is empowered to make "interim orders to protect prejudice to the claims of the parties." Once such an order has been made, it can be discharged or varied by the Supreme Court. Similarly, s. 10 (1) (a) empowers a single judge of the Supreme Court to hear and determine an application for leave to appeal. Where the decision goes against grant of leave, the party unsuccessfully applying for leave has a right under subsection (2) "to apply to the Supreme Court to have the matter determine by the Court."[15]


29. We note however, that there is no corresponding right in a person responding to and opposing an application for leave that succeeds, to similarly, apply to the Supreme Court against the decision to grant leave. This is understandable because a grant of leave to appeal is just that and nothing else. The respective rights and or interests in respect of the issues raised in the appeal remains intact for a proper hearing and final determination by the Supreme Court. Hence, it would be inappropriate in our respectful view, to allow a person defending a successful application for leave to appeal to the Supreme Court to apply for a variation or a discharge of such a decision. If that were the case, it would clearly be contrary to clear law as enunciated in SC Review No 4 of 1990; Application by Wili Kili Goiya[16] and it may in our view lead to chaotic situations. It may also cause much delay and frustration before there could be any hearing on the substantive issues on their merits.


30. The next thing we notice is that, the Supreme Court Act or any of the provisions under consideration do not define the terms "Supreme Court" or the "Court" as used in the Act and in particular, the provisions in question. It is however, clear to us, considering the way in which these provisions use those words and the definition of the word "judge" that, there is a clear distinction between "a judge of the Supreme Court" and the "Court" or the "Supreme Court." A judge refers to a single judge of the Supreme Court whilst the "Court" or the "Supreme Court" means the full Supreme Court. We are therefore of the view that an application to either vary or discharge under s. 5 (3) or an application under s.10 (2) has to go before the full Supreme Court.


31. Whist it is easy to say that an application under s.10 (2) can be filed and heard after the decision declining an application for leave to appeal, it is difficult to envisage whether there is any right vested in any person aggrieved by an interim order or direction under s. 5 (1) to apply for a variation or discharge of such an order prior to the hearing and determination of the substantive appeal. We note that unlike s.10 (2), s. 5 (3) does not speak in terms of an application. It rather speaks of a power in the Supreme Court to either vary or discharge an interim order, which in our view can be done when dealing with the substantive matter. We do not consider this to be an oversight on the part of the legislature. Instead, we are of the view that, the legislature did not intend to allow for appeals on appeals or putting it another way, lock up the parties to an appeal in interlocutory applications, and thereby frustrate and delay an expeditious hearing of the substantive appeal. After all, appeals are usually succinct and to a point and should not ordinarily take much time and effort on the part of the parties to take all steps necessary get to an expedited hearing.


32. We are of the view that, the fact that s. 10 does not set out any corresponding right in a person unsuccessfully defending an application for leave to appeal to apply for a determination of the matter by the Supreme Court confirms the position in our view that, interim applications upon interim applications or appeals upon appeals are not provided for. This is for a good reason. Parties are to take all steps necessary to enable an expedited hearing of the substantive matter and avoid being bogged down in interlocutory applications.


33. We are however, mindful of cases in which an interim order or direction may be made clearly without any jurisdiction or authority in the single judge issuing the direction or order in question as was the case in SCR 8 of 2003; Application by Anderson Agiru[17], in the context of applications for judicial review under s. 155 (2) (b) of the Constitution. There could also be cases in which the interim orders or directions causing serious prejudice or in effect determine the rights of the parties in the substantive appeal as was the case in Wau Ecology Institution v. Registrar of Companies[18]. There may also be cases in which the interim order or direction might cause serious and irreparable damage to either of the parties to the appeal that an urgent intervention of the Court is warranted. These cases in our view would not be the norm but exceptional cases in which, the Supreme Court should be requested and would have the inherent jurisdiction under s. 155 (4) of the Constitution to intervene to correct clear errors and minimize the risks of prejudice to a determination of the substantive grounds of the appeal and minimize or avoid any possible irreparable damage.


34. In the case before us, there is no dispute that, Los J., sitting as a single judge of the Supreme Court had the power to hear and determine the respondent's application for leave to appeal. Likewise, there is no dispute that His Honour had the power to hear and determine the application for grant of interim consequential reliefs and in particular, a stay of the National Court proceedings out of which, the appeal arose. The only contention is that, His Honour did not have the power to order Mr. Powi to continue has the Acting Administrator of the Southern Highlands Province, pending a determination of the substantive appeal. He argues that, this was a determination of the substantive issue raised in the appeal. Yet at the same time, the applicant concedes that, if the learned single judge of the Supreme Court stopped at granting leave and staying the proceedings, neither he nor Mr. Powi would be in charge of the administration of the Southern Highlands Province. That would have been chaotic as there would have been a vacuum in the Provincial Administration and in our view, Los J., was acting within his inherent powers to order either of them to occupy the position of the Administrator of the Province only as an interim measure, pending a determination of the substantive issues raised in the appeal. In fact His Honour did not determine the substantive issues raised in the appeal. Rather, he made an interim order pending a determination of the appeal.


35. Based on our above brief discussion we are of the view that s. 5 (3) and s. 10 (2) are directly on point. They provided for the kind of remedy the applicant seeks to get from this Court. There is therefore no vacuum to warrant an application of s. 155 (4) of the Constitution for a grant of the reliefs the applicant seeks. The inherent power under s. 155 (4) does not apply when powers granted to the Supreme Court either under other provisions of the Constitution or any other law, which includes the Supreme Court Act, are there. Hence, to the extent that, the applicants seek to invoke s. 155 (4) of the Constitution and not the relevant and applicable provisions of the Supreme Court Act, the application is an abuse of the process of the Court. The Court has an inherent power to protect itself from any such abuse by dismissing the application and we would do just that here.


36. Even if the applicant made his application under s. 5 (3) of the Supreme Court Act, we would still decline the application for three reasons. First, as we earlier observed, s. 5 (3) does not grant any person in the position of the applicant the right to apply to the full Court to either vary or discharge any interim orders or directions unless he or she can bring his or her application within the exceptions we have discussed. The Court has the power to do that only at the hearing of the substantive appeal.


37. Secondly, the applicant did not demonstrate to our satisfaction that, his case falls under any of the exceptional circumstances we have outlined above to warrant an earlier intervention by this Court in an interim application. There is no proof for example of any serious and irreparable personal harm or damage that may be suffered, which would warrant an urgent intervention of this Court prior to the substantive appeal being heard.


38. Finally, Los J., did not determine the substantive issue in the appeal. He only made an interim order to ensure continuity of administrative service in the Southern Highlands Province. It would not have served the interest of justice had His Honour merely ordered a stay of the National Court proceedings. Even if neither of the parties asked for it, it was within the powers of His Honour to make the kind of order he made and that order can only be revisited at the time of determining the substantive appeal in the absence of the applicant coming within the kind of exceptional cases we alluded to earlier.


(b) Has the Applicant made out a case under s. 155 (4)?


39. Our view in the foregoing makes it unnecessary for us to consider the second of the two issues raised in this application. For completeness however, we point out that, we are not convinced that the applicant has made out a case for us to exercise our powers under s. 155 (4) of the Constitution. The main reason for this view, apart from those already expressed, is that the applicant has not been able to establish to our satisfaction, what if any, of his rights and or interests are adversely affected by the orders that requires immediate protection. The applicant's counsel spoke of the applicant's need to be present when the investigation team from the National Government is there in the Province to carry out their duties and for him to settle his family. Starting with the later first, the applicant does not have to be in office to settle his family. Similarly he does not have to be present when the investigations are being carried out. The investigations in fact concern and centre around the time of the applicant's days as Administrator. Usually, investigations are carried out without the assistance of someone who is being investigated. The investigation team may have some questions for the person investigated to answer but, to answer such questions, the person need not to be in office to answer them.


40. For the forgoing reasons, we have no hesitation in dismissing the application with costs to the respondents. We would also direct that the parties take all the steps necessary to expedite the hearing of the substantive appeal.


41. Thus the formal orders of the Court are these:


  1. The application is dismissed as having no proper jurisdictional foundation.
  2. The applicant pays the respondents' costs to be agreed within 7 days, if not, taxed.
  3. An order in the form of a direction that the parties take all steps necessary to expedite the hearing of the substantive appeal.

Tamutae Lawyers: Lawyers for the First Respondent/Applicant.
Korowi Lawyers: Lawyers for the Second & Third Respondent/Supporting Applicants.
Naru Lawyers: Lawyers for the First Appellant/First Respondent.
Sumasi Singin: Lawyer for the Second Appellant/Second Respondent.
Solicitor General: Lawyers for the Third & Fourth Appellants/Third & Fourth Respondents.

[1] Chapter 37.
[2] See The State v. Donald Poni (22/09/04) N2663; Re Application by Anderson Agiru (08/10/01) SC671; Application of John Mua Nilkare (15/04/97) SC536 citing with approval Avia Aihi v. The State [1981] PNGLR 81 for more discussion or reaffirmation of this position.
[3] For a discussion of this principle see Re Application of Louise Autsila Ainie on Behalf of The Rarai Village Ugauga Sub–Clan of Ikoiko Clan, Central Province for Leave for Judicial Review (14/04/04) N2533; Kiau Nikints v. Moki Rumints [1990] PNGLR 123; and Samson Dacany v. Noah Taia of The National Fisheries Authority (13/12/02) N2316.
[4] S. 155(2)(a).
[5] S. 155(2)(b).
[6] [1982] PNGLR 150.
[7] [1983] PNGLR 350.
[8] Opt cit n 4 at 155.
[9] [1977] PNGLR 80 at p 85.
[10] (09/07/04) SC754.
[11] [1976] PNGLR 59.
[12] Opt cit n 9.
[13] Opt cit n 10.
[14] [1991] PNGLR 170
[15] See The Independent State of Papua New Guinea v. John Tuap (27/10/04) SC765, as to the correct way to make such an application.
[16] Opt cit n 14.
[17] (11/04/03) SC704.
[18] (12/08/05) SC794.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2006/15.html