Reference by Belden Namah [2020] PGSC 46; SC1956 (9 March 2020)

SC1956

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC(OS) 4 of 2019

Reference pursuant to Section 18(1) of the Constitution

Reference by the Honourable Belden Namah, MP in his capacity as the Leader of the Opposition

In the matter of Constitution Sections 11, 32, 41, 50, 59, 108, 142 and 158(2)

Waigani: Hartshorn J, Dingake J and Berrigan J
2020: 6^th & 9^th March

Applications for an adjournment or stay of proceeding

Cases Cited:

SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] 401
Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No. 1) [1988-89] PNGLR 355
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156
Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614
Behrouz Boochani v. The State (2017) SC1566

Counsel:

Mr. G. Sheppard and Mr. P. Tabuchi, for the Referrer
Mr. M. Nale and Mr. A. Serowa, for the First Intervener
Mr. N. Yalo, for the Second Intervener
Mr. C. Mende, for the Third Intervener
9^th March 2020

1. BY THE COURT: This is a decision on two contested applications, one for an interim stay and the other for an adjournment or an interim stay. Both applications were heard together. They seek the adjournment and stay of this proceeding pending the hearing and determination of another Supreme Court proceeding. The applications are made by the first intervener: the Prime Minister, Hon. James Marape; and the second intervener: the Deputy Prime Minister, Attorney General and Minister for Justice, Hon. Davis Steven (applicants). The applications are supported by the third intervener: the Speaker of Parliament, Hon. Job Pomat.

2. This proceeding is a Reference applied for pursuant to s. 18(1) Constitution by the Leader of the Opposition, Hon. Belden Namah (referrer). The referrer opposes the applications.

Reference

3. The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of sections of the Constitution concerning the election of Hon. James Marape as Prime Minister on 30^th May 2019 by the Parliament and before that election, the purported withdrawal of the nomination of Hon. Peter O’Neill for the position of Prime Minister and the actions of the Speaker of Parliament in accepting that withdrawal.

The applications

4. The applicants submit that this proceeding should be adjourned and stayed as amongst others, there is another proceeding which has been filed, a Special Reference, which will determine whether the referrer was the Leader of the Opposition when he commenced this proceeding. It is submitted that the Special Reference should be heard and determined first. If it is not heard first and this proceeding is not stayed, the applicants submit that amongst others, they will suffer prejudice.

5. The applicants make application pursuant to Order 3 Rule 2(a) and (b) and Order 13 Rule 13(3) Supreme Court Rules, and s. 155(4) Constitution. No issue was taken with the rules and section relied upon.

Consideration

6. This proceeding is within the original jurisdiction of the Supreme Court. Order 3 Rule 2(b) Supreme Court Rules provides that where such a proceeding is pending an interim order to prevent prejudice to the claims of the parties may be made by a Judge. It is not controversial that this Court, as distinct from a single Judge of the Supreme Court may also make such an order.

7. Order 3 Rule 2(a) merely provides for a direction to be made. Order 13 Rule 13(3) provides that an adjournment shall not be granted unless sufficient cause is shown.

8. Section 155 (4) Constitution has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction upon the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] 401 at 402.

9. In Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 at [11], reproduced by Salika DCJ (as he then was) and Hartshorn J in Behrouz Boochani v. The State (2017) SC1566 at [39], it was stated:

“6. Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):

“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.”

7. We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:

“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 are necessary to do justice in the particular circumstances of each 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 (sic) 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.”

8. We respectfully agree with the views expressed in Powi (supra).”

10. As Order 3 Rule 2(b) and Order 13 Rule 13(3) Supreme Court Rules provide remedies as previously referred to, then pursuant to point 3 of Medaing (supra) above, s.155(4) Constitution does not apply in this instance.

11. We therefore consider both applications under Order 3 Rule 2(b) and Order 13 Rule 13(3).

12. As mentioned, both applications seek an interim stay and one seeks an adjournment. In regard to whether an adjournment should be granted, in Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No. 1) [1988-89] PNGLR 355, Kapi DCJ (as he then was), stated that one of the requirements for a successful adjournment application is that the applicant must show actual prejudice and not merely speculative prejudice will be suffered by the applicant if the adjournment application is not granted. The Ok Tedi case (supra) has been followed in numerous decisions including in PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126.

13. In regard to whether an interim stay should be granted as sought, the wording of Order 3 Rule 2(b) Supreme Court Rules is the same as s. 5(1)(b) Supreme Court Act. The purpose of an interim order is, "to prevent prejudice to the claims of the parties", in s. 5(1)(b) pending the hearing and determination of an appeal to the Supreme Court and in this instance, pending the hearing and determination of this s. 18(1) Reference.

14. In determining whether such an order is necessary, the Supreme Court in Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [25] said as to s. 5(1)(b) Supreme Court Act:

"25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is "to prevent prejudice to the claims of the parties", pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focused on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice?"

15. Then at [26]:

"What is involved is the exercise of a judicial discretion in which the two considerations, strength of the applicant's claim and nature and extent of prejudice interplay, according to the circumstances of a particular case."

16. What is clear in our view, is that to be successful in an application for an interim order under s. 5(1)(b) Supreme Court Act or Order 3 Rule 2(b) Supreme Court Rules, one of the factors which the applicant must establish is that some prejudice to the claims of either or all of the parties will be occasioned if the interim order sought is not granted.

17. In this instance, it is not controversial that the next step to be taken in this proceeding is for this Court to hear and determine the sole question of the standing of the referrer to make this Reference, pursuant to Order 4 Rule 17(a) Supreme Court Rules.

18. The applicants submit that the other Supreme Court proceeding, the Special Reference, will determine whether the referrer was Leader of the Opposition when he filed this proceeding and whether he was entitled to commence this proceeding in the capacity of Leader of the Opposition. The next step in this proceeding however, will be for this Court to determine whether the referrer has the standing to make this proceeding.

19. This will involve the issue of whether the referrer was the Leader of the Opposition at the relevant time. In our view, the applicants will not suffer any prejudice to their claims as the next step in this proceeding involves the consideration of the issue which the applicants wish to have heard in the Special Reference.

20. In such circumstances and after a consideration of the evidence and the submissions, we are not satisfied that the applicants have made out that they will suffer any prejudice to their claims if the adjournment and or interim stays sought are not granted. The applicants have not therefore successfully made out that the interim orders sought should be granted. Given the above it is not necessary to consider the other submissions of counsel.

Orders

21. It is ordered that:

a) The application of the first intervener filed 30^th January 2020 and the application of the second intervener filed 31^st January 2020 are both dismissed;

b) The first intervener and second intervener shall pay the costs of the referrer of and incidental to their said applications.
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Young & Williams Lawyers: Lawyers for the Referrer
Jema Lawyers: Lawyers for the First Intervener
Nemo Yalo Lawyers: Lawyers for the Second Intervener
Wantok Legal Group: Lawyers for the Third Intervener