Ariako, Member for Mikarep Constituency in the Madang Provincial Government v Singoa, Member for Naho Rawa Constituency in the Madang Provincial Government, Jerry Manyir, Acting Assembly Clerk and Madang Provincial Government [1995] PNGLR 38 (11 January 1995)

PNG Law Reports 1995

[1995] PNGLR 38 - Andrew Ariako, Member for Mikarep Constituency in the Madang Provincial Government v Mahuyu Singoa, Member for Naho Rawa Constituency in the Madang Provincial Government, Jerry Manyir, Acting Assembly Clerk and Madang Provincial Government 

[1995] PNGLR 38

N1294

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANDREW ARIAKO, MEMBER FOR MIKAREP CONSTITUENCY IN THE MADANG PROVINCIAL GOVERNMENT, PLAINTIFF

V

MAHUYU SINGOA, MEMBER FOR NAHO RAWA CONSTITUENCY IN THE MADANG PROVINCIAL GOVERNMENT, FIRST DEFENDANT;

JERRY MANYIR, ACTING ASSEMBLY CLERK,

SECOND DEFENDANT;

AND

MADANG PROVINCIAL GOVERNMENT,

THIRD DEFENDANT

Waigani

Sawong J

11 January 1995

PRACTICE AND PROCEDURE - Injunctions - Interlocutory injunction - Principles upon which granted - Serious question for determination - Balance of convenience.

INJUNCTIONS - Interlocutory injunction - Principles upon which granted - Serious question for determination - Balance of convenience.

Facts

The plaintiff, a member of the Madang Provincial Assembly and leader of a faction vying to form the government, alleged that the Assembly met shortly after the general elections to appoint a Speaker. Mr Singoa was the sole nominee, and he was declared elected unopposed at the close of nomination. No motion was put to the members. Following a conflict on the validity of the Speaker’s election, he purported to resign by letter to the Acting Clerk. A substantive action was filed by the plaintiff to determine the validity of the election of the Speaker and his resignation. Pending the trial, the plaintiff sought an interlocutory injunction to restrain the Acting Clerk from convening an Assembly meeting for the purpose of electing a Speaker, Premier etc.

Held

1.       There were serious issues to be determined, viz, the election and resignation of the Speaker, which involved the interpretation of constitutional provisions.

2.       The balance of convenience favoured the granting of the injunction.

Cases Cited

Employers Federation of PNG v PNG Waterside Workers and Seamen’s Union (1982) unreported N393

Public Employees Association v Public Services Commission [1988-89] PNGLR 585

Robinson v National Airlines Commission [1983] PNGLR 476

Counsel

P Paraka for the plaintiff.

11 January 1995

SAWONG AJ: This is a ruling on a motion by the plaintiff seeking an interim injunction against the three defendants. The plaintiff, in his notice of motion, seeks the following orders:

“1.      That the second defendant/respondent, Mahuyu Singoa, be restrained from calling and or convening an Assembly meeting for the Madang Provincial Assembly until the substantive action in this originating summons is finally determined by this Court.

2.       Costs be in the cause.

3.       Such further and other orders as the Court deems fit.”

In essence, the plaintiff is seeking to restrain the Acting Clerk of the Madang Provincial Assembly from convening a meeting of the Assembly until a substantive action which has been commenced by an originating summons and filed in this Court is heard and determined by this Court.

In support of this relief, the plaintiff relies on two affidavits which have been filed. One affidavit was deposed on 10 January 1995 and filed in this Court on 11 January 1995. The brief facts, as deposed to by Mr Paraka in his affidavit, are as follows. He says that on 10 January 1995 at about 11:00 pm, he received a telephone call from the plaintiff from Madang. In that conversation, the plaintiff instructed Mr Paraka that the Acting Clerk of the Assembly, that is the second defendant, had issued a notice to all the members of the Madang Provincial Assembly, including the plaintiff, of the convening of the Assembly for a meeting on Wednesday 11 January 1995 at 10:00 am. The purpose of that meeting was for the election of the Speaker, Premier, Deputy Premier, and the Deputy Speaker. A copy of the notice of the convening of that meeting was annexed to the affidavit to Mr Paraka.

By way of background information, the facts are set out in the affidavit of Mr Andrew Ariako, the plaintiff, who deposed an affidavit on 5 January 1995. After the provincial general elections in December 1994, the Madang Provincial Assembly first met at 10:00 am on Friday 30 December 1994. The Provincial Assembly had 24 members. There were two groups vying to form the next provincial government. One was led by the plaintiff, with 11 other members, a total of 12 members. The other was led by Mr Mathew Gubag, with 11 other members, also a total of 12 members. On 30 December 1994, the Acting Clerk of the Assembly convened the Assembly, and all 24 members of the Assembly were sworn in. After the swearing in of members, the Acting Clerk of the Assembly then called for the nomination of the Speaker. The Member for Wangil Constituency, Mr Yamore Yagin, who was from the group led by Mr Gubag, stood up and nominated Mr Mahuyu Singoa as Speaker of the Assembly. This nomination was seconded by Mr Ase, the Member for Bundi Constituency. Mr Singoa was asked whether he accepted the nomination as the Speaker, and he indicated that he did accept the nomination. The plaintiff then moved that the nominations be closed. Mr Molok, Member for Almami Constituency, seconded the motion. It is not clear as to whether the motion was put to the members of the Assembly or not, and whether the members of the Assembly accepted the motion or not. However, as Mr Singoa was the only candidate, he was declared elected unopposed by the Acting Clerk of the Assembly. Subsequently, Mr Singoa was sworn in as Speaker of the Provincial Assembly.

After Mr Singoa received legal advice, he resigned his position as Speaker by submitting his written resignation letter to the acting Clerk of the Provincial Assembly. Some of the orders sought in the originating summons are:

“1.      A declaration that the election of Mahuyu Singoa as Speaker of the Madang Provincial Assembly on Friday 30 December 1994 is valid.

2.       A declaration that the purported resignation of Mahuyu Singoa as Speaker of the Madang Provincial on 30 December 1994 is invalid and null and void and of no effect.

3.       A declaration that Mahuyu Singoa is still the lawfully elected Speaker of the Madang Provincial Government.”

There are several other reliefs in the nature of declarations and orders being sought by the plaintiff in the originating summons, which are serious issues to be determined eventually in the substantive hearing.

The law relating to interim injuctions is well settled in this jurisdiction. Before an interim injunction can be granted, the applicant must satisfy the Court that:

1.       there is serious issue to be determined; and

2.       the balance of convenience favours the granting of the injunction.

The authorities supporting these proportions are set out in the cases of Employers Federation of PNG v PNG Waterside Workers and Seamen’s Union N393 (Kapi Dep CJ, 11 October 1982); Public Employees Association of PNG v Public Services Commission [1988-89] PNGLR 585; and Robinson v National Airlines Commission [1983] PNGLR 476.

The Court must decide, firstly, whether the issues contained in the originating summons are serious issues to be determined and, secondly, whether, having looked at the other factors, the balance of convenience favours the granting of an injunction.

Mr Paraka submitted that the issues that need to be tried at the hearing of the substantive matter commenced by the originating summons are serious, as they involve the interpretation of the Madang Provincial Constitution. The issue involves the election and resignation of the Speaker pursuant to the provisions of s 13 of the Constitution. He submitted that in accordance with s 13, the Speaker was validly elected into office. However, he submitted that the resignation by the Speaker was not effective, as his resignation was not accepted by the Assembly but by the Acting Clerk of the Assembly. He submitted that only the Assembly constituted by the duly elected members of the provincial government can decide whether to accept or reject the resignation. He submitted that the facts revealed that the Speaker tendered his resignation to the Acting Clerk of the Assembly, who accepted the resignation and informed the Assembly. Mr Paraka submitted that this was wrong. He submitted that the actions taken by the second respondent as a matter of law were wrong, as they were clearly not in accordance with the constitutional provisions. Further, he submitted that the acting Clerk of the Assembly did not have the power to accept the resignation of the Speaker. He submitted that, accordingly, there were serious issues to be determined, and the case is not a speculative one.

In regard to the second aspect, Mr Paraka submitted that if an injunction is not granted, the plaintiff will suffer or his interest would be jeopardised. He submitted that, looking at the overall circumstances of the case, the balance of convenience favours an injunction to be granted.

I have carefully considered the submissions. I am satisfied that the issues raised and contained in the originating summons are serious issues that need to be determined. The issues are not speculative. I am also of the view that, if the relief sought is not granted, the plaintiff’s interests may be jeopardised. I am also of the view that, in all the circumstances of this case, the balance of convenience favours the granting of an injunction. A brief summary of the Madang Provincial Constitution will help in determining whether issues posed are serious or not. I accept the submissions put forward by Mr Paraka, and I grant the orders sought.

My formal orders are as follows:

1.       That the Acting Clerk of the Assembly be restrained from convening a meeting of the Madang Provincial Assembly until the substantive action in the originating summons is finally determined by this Court.

2.       That the interim injunction be returnable before the National Court on Friday 13 January 1995 at 9:30 am.

3.       The cost be in the cause.

Lawyer for the plaintiff: Paul Paraka Lawyers

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