Tato v Akunai [2016] PGSC 88; SC1625 (15 February 2016)

SC1625

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 12 of 2016

Between:
SOLOMON TATO
Appellant

And:

SAMSON AKUNAI- ACTING PROVINCIAL ADMINISTRATOR, EASTERN HLANDS PROVINCIAL ADMINISTRATION

First Respondent

And:
HON. JULIE AKEKE SOSO MP, GOVERNOR & CHAIRWOMAN OF
EASTERN HIGHLANDS PROVINCIAL(EXECUTIVE) COUNCIL
Second Respondent

And:
EASTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL
Third Respondent

Waigani: Injia, CJ
2016: 12^th, 13^th & 15^th February

SUPREME COURT- Practice and procedure - Application for stay- Exercise of discretion- Appointment of Acting Provincial Administrator to position held by substantive office holder- Principles - Principles of equity applied- Equity follows the law- Substantive Office holder restored to office pending determination of appeal- Supreme Court Act, s 5(1)(b), s 19.

Counsel:

D Lau, for the Appellant
R Obora, for the First Respondent
T Waisi, for the Second Respondent
M Wilson, for the Third Respondent

15^th February, 2016

1. INJIA CJ: This is a contested application for stay pending determination of the appeal. The application is made under s 19 of the Supreme Court Act (the Act).

2. The principles on grant of stay are set out in McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (McHardy case). The grant or refusal of stay is discretionary and it is exercised on proper principles and on proper grounds. The Court must start from the basic premise that the judgment creditor is entitled to enjoy the fruits of the judgment. There are ten (10) other considerations which are enumerated in that case which may be considered. The circumstances of a particular case may warrant greater or less or even no weight to a particular relevant factor(s) and then again, that is a matter of discretion. The onus is on the applicant to persuade the Court to exercise that discretion in his favour. The determination of these criteria usually involves a consideration of the matters contained in the notice of appeal or application for leave to appeal and other relevant material including the transcript of proceedings of the National Court produced by the parties. The exercise of a preliminary assessment of the material before the Court to determine whether the criteria set out in McHardy have been satisfied to warrant a stay. That exercise involves a consideration of material that is relevant and applicable to the purpose of the application and the lifespan of any ruling arrived at in the final analysis lasts only in the interim period the substantive appeal is pending the hearing and determination, how so long that might be.

3. Counsel representing all the parties made submissions on the application of the McHardy principles to the circumstances of this case. I apply the considerations set out in McHardy which are relevant to the circumstances of this case in the following manner.

4. Of the criteria set out in McHardy, there is no contest that the First Respondent is the main beneficiary of the interlocutory judgment appealed from and he is entitled to enjoy the fruits of that judgment. This consideration favours the First Respondent.

5. There is no contest that leave to appeal is not required. It is also clear that there has been no delay in making this application. Further there is no question with regard to the financial ability of the applicant. These three (3) considerations favour the appellant.

6. The remaining criteria require consideration and determination. After hearing the parties over one and half days of argument time, the points for deliberation and determination by this Court have crystallized to 8 main points which I deal with. The other points that I do not deal with are in my considered view, trivial, irrelevant or insignificant or of a technical nature that add little or no value to the substantive points in the application to be determined and therefore do not merit consideration.

7. The remaining points for consideration relate to the following criteria:

• Nature of the judgment
• Error on the face of the record of the judgment
• Arguable case on appeal
• Possible hardship, inconvenience or prejudice to either party
• Damages as an adequate remedy
• Balance of convenience
• Overall interest of justice
  

Nature of the judgment

8. The appellant appeals from interlocutory interim restraining orders given by the National Court sitting in Goroka on the 26^th of January 2016 in proceedings commenced by the First Respondent on 27^th November 2015 in OS No. 762 of 2015- Samson Akunai & Ors v. Solomon Tato & ors. The interlocutory judgment appealed from is related to the conduct of two (2) other National Court proceedings. It is necessary to set out those related judicial proceedings and events that unfolded in response to all these three (3) National Court proceedings.

9. The dispute over the Provincial Administrator’s position emerged when criminal proceedings were brought against the Appellant in June 2015. On 26 November 2014, the NEC appointed the Appellant as the Provincial Administrator of EHP. In June 2015 the criminal proceedings were commenced against the Appellant in the District Court at Waigani. Whilst that case were undergoing committal proceedings in the District Court, the Appellant commenced proceedings in the National Court proceedings in OS No. 471 of 2015 -Solomon Tato v Julie Soso & Others. On 12 August 2015, the National Court (Kandakasi J presiding) ordered “the Plaintiff shall voluntarily step aside pending conclusion of the current criminal proceedings against him” and that “An Acting Administrator shall be appointed forthwith in accordance with the relevant legislation and the due process of such appointments". The Appellant complied with the order and took voluntary leave of absence. The NEC complied with the order and appointed the First Respondent as the Acting Administrator for a period of 3 months. This appointment expired on 11^th November 2015. On 12^th November 2015, NEC re-appointed him for a further term of three (3) months. This term was to expire on 11^th February 2016.

10. On 26^th November 2015 the District Court dismissed the criminal proceedings brought against the Appellant. The appellant returned to his office for duty but his resumption was resisted by the First Respondent who claimed that his Acting appointment was current.

11. On 27^th November 2015, the First Respondent commenced proceedings in OS No.762 of 2015 in Goroka National Court seeking declaratory orders to enforce his Acting appointment. In those proceedings, the First Respondent claimed a declaratory order that his appointment by the NEC as the Acting Administrator of Eastern Highland Province (EHP) pursuant to National Gazette No. G747 dated 12^th November 2015 is legal and valid for the period of three (3) months specified in the notice. He also sought interim orders.

12. On 30^th November 2015, the trial judge (Polume-Kiele J presiding) granted interim orders that restrained the Appellant and his agents or servants “from interfering with the good administration and operation of the Eastern Highlands Provincial Administration until such time as the substantive hearing of these proceedings are determined". The trial Judge further ordered that the Appellant and his agents be restrained “from interfering, questioning, or undermining the performance and operational functions of the Office of the Provincial Administrator through the Plaintiff until such time that the substantive matter has been dealt with”.

13. In December 2015, the Appellant filed his own proceedings in Waigani National Court in proceedings OS No. 815 of 2015 Solomon Tato v Julie Soso, Minister for Public Service, The State & Others. In those proceedings the Appellant sought declaratory orders that there was no vacancy in the office of the Provincial Administrator for the EHP to be filled by Acting appointment. He also sought interim orders.

14. On 30^th December 2015, the National Court sitting at Waigani (Koeget AJ presiding) granted ex parte interim orders in favour of the Appellant, which were made returnable on 15^th February 2016. Amongst other orders, the Court ordered the Appellant to resume office as the substantive holder of the position of the Administrator of EHP, restrained the Respondents from interfering with the Appellant’s performance of his functions, restrained the other Respondents from making any further Acting appointments of the First Respondent, and restrained the Respondents from taking any steps to revoke the Appellant’s permanent appointment and appointing the first respondent as the permanent Administrator. The order was served on the Respondents.

15. On 26^th January 2016, the trial judge in Goroka ordered the consolidation of proceedings in OS 762 of 2015 and OS 815 of 2015 and ordered that OS 815 of 2015 be transferred to Goroka National Court. The trial judge then ordered that “the status quo remain until it is invoked (sic) by the NEC and that normal
operations of the Eastern Highlands Provincial Government continue and that the defendant Solomon Tato, his agents, his servants and associates whosoever are restrained from interfering with the normal function of the Eastern Highlands Provincial Government in whatever form or manner". The trial judge also ordered that to “maintain the status quo, the acting appointment of Samson Akunai continues until the substantive matter is heard”. The trial judge further ordered that the “ex parte interim orders obtained in proceedings OS 815 of 2015 at Waigani are stayed to the hearing of the substantive matter. ”

16. On 2^nd February 2016, Hitelai-Polume J continued the interim orders of 26^th January 2016.

17. On 11^th February 2016, the NEC re-appointed the first respondent as Acting Administrator for EHP for a period of three (3) months.

18. The current appeal was filed on 8th February 2016. In the application for stay moved before me, the appellant seeks an order that “ the Court Orders of the Goroka National Court made on 26th January 2016 in proceedings OS No. 762 of 2015 - Samson Akunai v Solomon Akunai (sic) and the entire proceedings therein be stayed pending determination of this appeal pursuant to Section... 19 of the Supreme Court Act”.

19. From the foregoing chronology of events, it is hard to say that the proceedings in the two cases (OS 762 of 2015 and OS 815 of 2015) referred to raise different subject matters and different issues. I agree with counsel for the Respondents that these two proceedings concern the same subject matter and raise the same or similar issues which are inter-linked and interwoven. It is also hard to say that the developments on the Acting appointment front on the part of the NEC are not closely connected so that they become independent decisions. The three Acting appointments are indeed related, with the two subsequent appointments in effect amounting to an extension or continuation of the first Acting appointment. It is therefore necessary to consider the totality of these circumstances rather than isolating the events and actions taken by different players and treating them differently and separately. For instance even though the interim orders made in OS (JR) 815 of 2015 have not been appealed from in a separate appeal which would give context to deal with any issues arising from those orders, the interim orders are relevant to these proceedings, that those orders have been properly argued by the parties in this application and those orders therefore fall to be considered by this Court. The same can be said of the substantive relief claimed in OS 762 of 2015 which is confined to the Acting appointment term then. The continuation of the Acting appointment and continuation of interim orders granted on 30 November and 26 January 2016 and 2 February 2016 leaves the vitality of those proceedings and the substantive relief claimed current and alive to this day. For this reasons, I dismiss the Respondents’ argument that because events have overtaken the interim orders appealed from, the application for stay does not arise for consideration.

20. The substantive appeal deals with the exercise of discretion to grant interim restraining orders. Interim restraining orders are a form of injunctive relief. The grant of injunctive orders are highly discretionary. The source of principles of law governing injunctive relief is found in the common law and equity of England which are adopted as part of the underlying law of this country. The reception of the principles of common law and equity is subject to the written or statutory laws of this country. As with any equitable remedy, the long established maxim “equity follows the law” is there to be observed and applied to cases involving public contract of employment founded on statute. As a Court of Justice, the National Court is charged with the duty to dispense according to law. The grant of interim restraining orders in public employment contracts founded on statute must first conform to the provisions of statute and only tailor equitable remedies to suit remedies available under statute, and only where there is a gap in the statutory law.

Error on the face of the record of the judgment & Arguable case on appeal

21. These two criteria are similar and are dealt with together.

22. The appellant Relied upon various errors of substantive law and procedure which were countered by the Respondents. It will suffice to deal with five (5) main points argued by the parties.

23. First, the Appellant argued that the interim orders of 26^th January 2016 issued by Polume-Kiele J conflicted with the orders made by Koeget AJ in OS 815 of 2015 which were current. The trial judge erred in staying the orders in OS (JR) No. 815 because the judge had no jurisdiction to stay the orders of another judge of equal jurisdiction.

24. The Respondents argued the Waigani orders were irregularly obtained ex parte in the absence of the Respondents. The Appellant, knowing the interim orders issued in Goroka in OS762 of 2015 avoided the Goroka proceedings and commenced proceedings in Waigani that duplicated the issues. Instead of applying to set aside the interim orders of 30^th November 2015, the appellant avoided the Goroka proceedings and obtained ex parte orders in Waigani and thereby abused the Court process. In the circumstances, the trial judge in Goroka properly ordered a transfer of the Waigani proceedings, consolidated those proceedings and stayed the interim orders issued to resolve the conflict. The trial judge is given wide powers by s155(4) of the Constitution to grant such orders and no error in the exercise of discretion can be attributed to the trial judge in the circumstances.

25. A trial judge has wide discretion given by the rules of court to set aside, vary or discharge interim orders made by the judge. The question whether a trial judge of equal jurisdiction has that jurisdiction to set aside, vary, discharge or stay another judge’s interim orders is a moot point. It would seem on the face of it that, that other judge has the jurisdiction to do so in appropriate cases. I would prefer clear case authority on point brought to my attention by the appellant who carries the burden of persuasion in this application, to take a different view. That has not been done. I am not satisfied that an arguable case has been demonstrated by the appellant on this point.

26. Secondly, the Appellant contends the trial judge in Goroka overlooked the fact that the Appellant is the substantive holder of the Provincial Administrator’s position and that the First Respondent only held office in his absence in the period the Appellant was on voluntary court-ordered leave of absence. When the condition for acting appointment stipulated in the Court order was fulfilled when the committal proceedings were determined in his favour, the Appellant, as a matter of law, was entitled to return to his office and assume the duties and functions of that office.

27. The Respondents submit both the Acting appointment and the permanent
appointment were both valid because they were made by NEC, the appointing
authority, under law. If the appellant had issues with the Acting appointment, he
should seek a judicial review of the Acting appointments or seek the NEC’s
indulgence on the matter.

28. I am satisfied that the Appellant has demonstrated an arguable case on this point. The Appellant is the substantive holder of the position. Once the conditions for Acting appointment stipulated in the orders of Kandakasi J was fulfilled, the Appellant was entitled to return to office and resume duties under law. He need not seek clearance from the NEC for that or seek judicial intervention as suggested by the Respondents. There is in my view a clear and apparent error of law on the face of the judgment, that this important point of law was not given any consideration by the trial Judge. If it has been given proper consideration, the interim orders of 30^th November 2015, 26^th January 2016 and 2^nd February 2016 could not have been issued and maintained in law.

29. Thirdly, the Appellant contends the two subsequent Acting appointments were an extension and the law does not authorize such extensions. Therefore they are invalid. The Respondents argue the Acting appointments are separate
appointments for a determinate term and independent of each other and were
validly made.

30. I do not think this point raised by the Appellant is arguable. The NEC clearly has authority to make successive Acting appointments. I find nothing in Section 193IB of the Constitution and s 18 of the Public Services (Management)
(Employment of Provincial Administrators) Regulation 2014 that restricts an Acting appointment of a person to only one term. In any event the three Acting appointments in this case were independently made although they were for a continuous period. The instruments of appointment do not say if the two subsequent appointments are an extension of the previous appointment.

31. Fourthly, the Appellant contends the Acting appointments, though permitted under s 18 (l)(d) of the Public Services (Management) (Employment of Provincial Administrators) Regulation 2014, were made in breach of s 18 (2) of the same Regulations because the First Respondent was appointed from someone outside the Provincial Administration. The Respondents contend that the First Respondent was recruited from outside the Provincial Administration out of necessity because the list of eligible prospective candidates from within the Provincial Administration had been exhausted.

32. This is an arguable point on appeal as the appointment clearly runs contrary to s 18.

33. Fifthly, the Appellant contends the interim orders of 30^th November 2015 had lapsed on the return date stipulated therein and there was nothing to extend on 26^th January 2016.

34. For reasons I alluded to earlier, the three interim orders issued on 30^th November 2015, 26^th January 2016 and 2^nd February 2016 appear perpetual in nature given the currency and continuity of the proceedings and the unfolding events that continued to effect the Acting appointments. I am not persuaded that this is an arguable point in the appeal.

Possible hardship, inconvenience or prejudice to either party

35. The appellant contends he stands to suffer hardship, inconvenience and prejudice as a result of the interim orders that prevents him from occupying the office and performing the duties of that office to which he is entitled under law. The Respondents contend the Appellant is receiving full service entitlements on the position and therefore unlikely to suffer any real hardship, inconvenience or
prejudice to his rights. The duties of the office are being ably performed by the
First Respondent. There is no administrative vacancy or vacuum in the office of
the Provincial Administrator for the Appellant to fill in.

36. I accept the Appellant’s submission. The substantive holder of a public office is always entitled to enjoy the term of the office to which he is appointed and perform the duties of that office if he is under no legal disability by reason of physical disability otherwise lawfully disqualified from holding office. It causes greater inconvenience, hardship and prejudice to the legal rights of substantive holder of the position than someone on Acting appointment, to be kept out of office when he is on full service entitlements. The Appellant is under no disability and under no disqualification. The First respondent can return to his position outside the Provincial Administration and settle in his original position with little difficulty and inconvenience. His Acting appointment though gives him some measure of entitlement to hold the position for the period of the term he is appointed to, but as I have already said, under law, his rights are inferior to the superior rights of the substantive office-holder.

Damages as an adequate remedy

37. Damages is obviously not an appropriate remedy for the Appellant. He has a compelling legal and contractual right to be accorded a remedy which is the equivalent of specific performance of the contract of employment that he has entered into with the State which is current. Equity will come to his aid to restore him to office and the most convenient remedy is an interim injunctive relief, and stay order being one such remedy, that is available to this Court to issue.

Balance of convenience

38. The balance of convenience factored heavily in the exercise of discretion of the trial judge. Maintenance of the status quo was given as the reason for the extension of the interim orders of the 30^th November 2015.

39. The Appellant contends the public interest in the good administration of the office of the Provincial Administrator is critical: Kavo v Maipakai (2010) SC 1067. The public interest lies in the restoration of good administration and return to service delivery in the province. To do this, it will take the Appellant returning to office to take control of the instability and halt to service delivery that has arisen by reason of the continuous Acting appointment of the First Respondent brought in from outside the Provincial Administration. The Appellant compared with the First Respondent has extensive years of public service experience in the province by some 26 years, of which he was Deputy Administrator of the Province before being appointed as the Administrator. He voluntarily took leave when he was charged with criminal offences and he has been cleared of those charges by the District Court. He has had 8 months experience in running the office before taking voluntary leave of absence, he has the necessary experience on the job and is ready to resume duties.

40. The Respondents contend the instability in the province was created by the Appellant filing proceedings in Waigani instead of Goroka and taking out ex parte orders that in effect terminated the First Respondent’s statutory appointment. The province has been well managed by the First Respondent during his term in office and this was recognized by the trial judge who continued his service. There is no administrative vacancy in the office for the Appellant to fill and assume his duties. The First Respondent has been validly appointed Acting and he should be allowed to remain in office for the good of the administration of the province.

41. There is ample material placed before me that supports the submissions by all the parties to these proceedings, that the main Provincial Administration Building situated in the Yanepa House, has been seized by chaos and impasse with the public service machinery almost coming to a standstill, public servants divided, the political establishment divided, even the police force called in to restore order divided and the public divided. All this has occurred by reason of the contest over the Provincial Administrator’s position following the appointment of the Acting Administrator under Court order issued on 5 August 2015. The interim orders issued by National Court with the aid of the lawyers in two separate proceedings over the same subject matter has in part created confusion and has contributed heavily to the impasse situation. The NEC has compounded the problem by failing to review and revoke the Acting appointment of the First Respondent made on 11^th November
2015 when the condition of that acting appointment specified in the National
Court order of Kandakasi J was fulfilled when the Appellant was discharged from the criminal proceedings on 26^th November 2015, and then further compounding the problem by reappointing the First Respondent to a further three month term as Acting Administrator on 11^th February 2016. When the Appellant was discharged on the criminal offences, by the terms of the order of Kandakasi J, he had to return to his post. The balance of convenience and the public interest in the good administration of the office of Provincial Administrator of EHP lies in the incumbent substantive holder of that office returning to his post and discharging the duties of that office when there are no legal impediments that stand in the way that would prevent him from assuming office. It is hard to believe that an Acting appointee would claim and assert, and for a court of law to recognize and enforce, the inferior right to hold office held by an Acting appointee that conflicts with the superior rights of the substantive officeholder of the position.

Overall interest of justice

42. The grant of injunctive orders are highly discretionary. As with any equitable remedy, the long established maxim "equity follows the law”, when applied to the facts of this case meant that although both the Acting appointment and permanent appointment were founded on law, the permanent appointment was superior to the Acting appointment. The trial judge appears to have failed to apply this law when making the interim orders of 30^th November 2015, 26^th January 2016 and 2^nd February 2016. The overall interest of justice favours the legal rights of the substantive officeholder of the office of the Provincial Administrator of EHP. The substantive holder of the office’s right to hold office and discharge the duties of that office being superior to that of an Acting appointee, the law must take its course in the interim period the appeal is pending hearing and determination.

Conclusion

43. In summary notwithstanding the small number of considerations which favour the respondents, the weight of all the other considerations favours the grant of a stay.

Terms of Stay Order and its Effect

44. The order sought in the amended Application for stay reads:

“For the Court Orders of the Goroka National Court made on 26th January, 2016 in proceedings OS No. 762 of 2015- Samson Akunai & Ors vs. Solomon Akunai (sic) and the entire proceedings therein be stayed pending determination of this appeal pursuant to Section ...19 of the Supreme Court Act”.

45. I agree with the Respondents that the orders sought expressed above is a little ambiguous as to its effect. For purposes of clarity and to avoid confusion as to its effect, I make consequential orders, part of which may appear to be injunctive which could come under s 5 (l)(b) of the Supreme Court Act, a provision that is not invoked by the Appellant. Though parties avoided making any submissions to the effect of a stay, it is in the discretionary jurisdiction of this Court to make these orders, with or without application by a party, as allowed by s 5 (l)(b) and s 155 (4) of the Constitution. In order to do justice to the parties and to prevent a repeat of the chaos that has gripped the EHP public service machinery out of confusion, partly contributed by confusing/conflicting Court orders, it is necessary for this Court to issue these consequential orders.

46. Further, it is imperative that the hearing and determination of the substantive
appeal ought to be expedited to resolve these important points of law raised in the appeal. To facilitate an expedited heating, I propose to post this case on the Case Fast Track List recently introduced by this Court and to fast track the preparation of the necessary Appeal Book and list the substantive matter to be heard and determined in either March or April 2016 at the latest.

Orders

47. I grant Orders as follows:

(1) The application for stay is granted.

(2) Further conduct of the proceedings in OS 762 of 2015 and OS 815 of 2015 in Goroka, inclusive of conduct of the proceedings on the interim orders issued to date in both matters including the interim orders issued in OS 726 of 2015 on 30^th November 2015, 26^th January 2016 and subsequently on 2^nd February 2016; and, interim orders issued in OS 815 of 2015, are all stayed pending the hearing and determination of this appeal.

(3) Pursuant to the Court orders of the National Court made by Kandakasi J in OS 471 of 2015 Solomon Tato & another v Hon Julie Soso & Ors, on 12 August 2015, the Acting appointments of the First Respondent made by the National Executive Council on 11^th February 2016 cease to have effect forthwith. The appellant is restored to office according to law effective as from this day on, and shall be permitted by the Respondents and the National Executive Council to resume office forthwith, pending the determination of this appeal.

(4) The substantive appeal is fixed for Directions on Monday 29^th February 2016 at 9:30am, during which the Appellant shall produce a draft Index to the Appeal Book for this Courts consideration and settlement.

(5) For purpose of Directions Hearing on 29^th February 2016, this Court requests the Court Reporting Service to produce a certified copy of the transcript of proceedings of the National Court at Goroka before Polume-Kiele J in OS 762 of 2015 of 30^th November 2015, 26^th January 2016 and 2^nd February 2016; before 29^th February 2016, if that is possible.

(6) The Application for Leave to Appeal filed on 8^th February 2016 is fixed for hearing on Wednesday February 2016 at 1:30 pm.

(7) Costs of the application shall be in the cause of the substantive appeal.

_______________________________________________________________
Niuage Lawyers: Lawyer for the Appellant
Raymond Obora Lawyers: Lawyer for the First Respondent
Waisi Lawyers: Lawyer for the Second Respondent
Warner Shand Lawyers: Lawyer for the Third Respondent