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Morea v Central Provincial Government [1978] PGNC 38; [1978] PNGLR 415 (3 November 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 415 - Taumaku Morea v Central Provincial Government 

[1978] PNGLR 415

N169

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TAUMAKU MOREA

V

CENTRAL PROVINCIAL GOVERNMENT

Waigani

Andrew J

28 October 1978

3 November 1978

PARLIAMENT -Members of - Resignation - Resignation from Central Provincial Assembly - Establishment of Central Provincial Government - Whether resignation in writing required to be signed - “Signature” - Declaratory orders - Utility and scope - Constitution of the Central Provincial Government s. 13 - Rules of Court O. IV, r. 11.

The applicant, an appointed member of the Central Provincial Assembly wishing to stand for a by-election in the National Government, notified the Provincial Government’s Executive officer of his intention and had him draft a letter of resignation which was, however, never signed. Following an unsuccessful campaign the applicant sought to resume his seat in the Central Provincial Assembly but was advised that he could not be reinstated. Section 13 of the Constitution of the Central Provincial Government provides that an “elected member’s seat becomes vacant if he resigns his seat by notice in writing to the Speaker or in the case of the Speaker to the Premier”.

By s. 15 of the Constitution of the Central Provincial Government prior to the general election of the Central Provincial Assembly (not planned until 1979) there is an interim vesting of legislative power in the Provincial Constituent Assembly and by s. 55, until an Act of Assembly is passed declaring that there shall be a speaker, the Premier shall be the speaker.

Upon the applicant seeking declarations, inter alia, that he had not resigned his seat in the Assembly and that he was entitled to take his seat in the Assembly as from the 18th July, 1978;

Held

N1>(1)      An appointed member of the Central Provincial Assembly can only resign in the same way as an elected member that is “by notice in writing”, but with the one difference that this notice must be directed to the Premier.

N1>(2)      A notice in writing showing an intention to resign under s. 13 of the Constitution of the Central Provincial Government, must be signed by the person giving the notice for it to have any effect.

Halsbury’s Laws of England 4th ed. vol. 12 par. 1451 referred to.

N1>(3)      A signature is the writing, or otherwise affixing, a person’s name, or a mark to represent his name, by himself or by his authority, with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed.

The Queen v. The Justices of Kent (1873) 8 Q.B. 305.

N1>(4)      Accordingly, the applicant had not signed or otherwise acknowledged (as by placing his mark) the notice which purported to be his resignation.

N1>(5)      A declaratory order pursuant to O. IV, r. 11 of the Rules of Court was the most appropriate and useful order available.

N1>(6)      Accordingly it should be declared that the applicant had not resigned his seat in the Central Provincial Assembly and that he was entitled to take his seat and had been so entitled as from 18th July, 1978.

Summons

This was an application by way of originating summons seeking declaratory orders pursuant to O. IV, r. 11 of the Rules of Court.

Counsel

D. M. McDermott, for the applicant.

N. Gregory, for the respondent.

Cur. adv. vult.

3 November 1978

ANDREW J: This is an application by way of originating summons seeking declaratory orders pursuant to O. IV, r. 11 of the Rules of Court.

Order IV, r. 11 provides:

“An action or proceeding shall not be open to objection on the ground that a merely declaratory judgment or order is sought thereby; and the Court may make binding declarations of right in an action or other proceeding properly brought, whether any consequential relief is or could be claimed therein or not.”

The terms of O. IV, r. 11 are in almost identical terms to s. 75 of the N.S.W. Supreme Court Act 1970 and the power of the Court to give declaratory judgments is well outlined in Equity, Doctrines and Remedies by Meagher, Gummow and Lehane at Ch. 19. The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction: The Commonwealth v. Sterling Nicholas Duty Free Pty. Ltd.[dcvi]¹.

N1>Of the utility and scope of the remedy there is no doubt. There is virtually no situation in respect of which a declaration cannot be made. Thus in matters of status, declarations can be made that the plaintiff is still a member of a club (Young v. Ladies’ Imperial Club Ltd.[dcvii]²); church (Stuart v. Haughley Parochial Church Council[dcviii]³); trade union (Bonsor v. Musicians’ Union[dcix]⁴); or professional organisation (Law v. Chartered Institute of Patent Agents[dcx]⁵); or that his purported expulsion from such a body is invalid (Holden v. Southwark Corporation[dcxi]⁶); or that a person pretending to be such a member is in fact not one (Attorney-General v. Ulverston Urban District Council[dcxii]⁷).

N1>The applicant was an appointed member of the Central Provincial Assembly. During 1978 he wished to stand for a by-election in the seat of Kairuku-Hiri in the National Government. He resigned or purported to resign from the Central Provincial Assembly (and I shall return to this point) and following his unsuccessful campaign for this seat he sought to resume his seat in the Assembly but was advised by letter from the Executive Council of the Central Provincial Government that he was unsuccessful on the grounds that:

N2>“1.      There is no provision in the Central Provincial Government Constitution that enables a member of the Provincial Assembly to be re-instated automatically when he resigns to contest the National Election.

N2>2.       It is only three to four months to go before the proper Provincial Election.”

He now seeks declarations that:

N2>1.       The Central Provincial Government has no power to expel members of the Central Provincial Assembly except pursuant to the provisions of the Constitution of the Central Provincial Government and laws passed under that Constitution.

N2>2.       That he has not resigned his seat in the Assembly.

N2>3.       That he is entitled to take his seat in the Assembly as from 18th July, 1978.

During the course of the hearing the applicant abandoned the first ground.

I set out briefly an outline of the history of the Central Provincial Government. The Provincial Government (Preparatory Arrangements) Act 1974 by s. 2 empowered the then High Commissioner where there existed in his opinion in an area a properly organised body that is capable of acting as a provincial government body, by notice in the Government Gazette, to declare it to be a provincial government body for the purposes of the Act in relation to that area. Notice pursuant to that section appeared in Government Gazette No. G56 of Thursday 8th July, 1976.

The Organic Law on Provincial Government came into operation on 1st April, 1977. Section 6 provided:

N2>“S.6 (1)         When:

(a)      a resolution authorising the grant of provincial government to a province has been made and is in force under Section 4; and

(b)      the provincial constituent assembly had adopted, in accordance with Part III, a constitution for the province that is not inconsistent with the National Constitution or this Organic Law,

the National Executive Council shall advise the Head of State to grant provincial government to the province and the Head of State shall, by Charter under his hand, grant provincial government to the province accordingly.”

The above grant of Charter was made on 14th July, 1977: see Government Gazette No. G56 of 1977. The provincial constituent assembly had on 20th June, 1977 adopted a Constitution in accordance with the Organic Law and this came into effect on the day of the granting of the Charter.

The applicant has filed an affidavit dated 11th October, 1978 and has given sworn evidence. I accept him as a truthful witness. Thus he has said that he was appointed a Member of the Provincial Assembly of the Central Province on 13th September, 1976. He was appointed to represent the area known as Hiri West which covers the coastal area from Roku to Manu Manu and the Vanapa area inland to Boteka and Siraka villages. He had previously been a member of Local Government Councils in this area. In 1977 he and two other members of the Provincial Assembly contested seats in the National Election. He was a candidate for the seat of Kairuku-Hiri. At an Assembly meeting in February, 1977 the question of members of the Assembly standing for the National Elections was discussed and as a result an Information Circular dated 19th April, 1977 was issued by the Premier to the Members of the Provincial Assembly. The effect of the circular was that members had to resign when they nominated as candidates for the National Election but they “will however resume as members in their original seats with pay if they have been unsuccessful in the elections”. This circular has been admitted into evidence.

He was unsuccessful in his quest for election and he was re-instated to the Assembly. However, the elected member for Kairuku-Hiri died and a by-election was called in 1978. He decided to stand again and was advised by the Premier that the circular of 19th April, 1977 still stood. The same advice was given to him by Mr. Louis Kemau, the Provincial Government’s Executive Officer. Accordingly he drafted a resignation and gave it to a secretary employed at the Central Provincial Government Office. The draft was not given back to him and he did not sign it or any other resignation form. There is some conflict in the evidence before me as to whether the applicant asked the Executive Officer and the Premier to sign the letter of resignation for him. However, on my findings this is not important. The Executive Officer says that in any event both he and the Premier felt that they could not sign on the applicant’s behalf and thus no signed resignation was executed.

In his evidence, the then Executive Officer, Mr. Louis Kemau, said that the applicant came to his office some time in the second week of May, 1978. He drafted a letter of resignation which he gave to the typist. The letter was given to himself, Mr. Kemau, after being typed and he, Mr. Kemau, took it to the Premier. Later he took it back to his own office to await the applicant’s signature. However, it remained unsigned. He, the applicant, did come back once but the letter could not be located. The applicant had requested the letter back as he wished to change the word “resign” to “leave without pay”. Mr. Kemau was not aware of any letter having been sent to the applicant acknowledging receipt of his resignation.

The Constitution of the Central Provincial Government by s. 13 provides that an elected member’s seat becomes vacant if he resigns his seat by notice in writing to the Speaker or in the case of the Speaker to the Premier. By s. 55 until an Act of the Assembly is passed declaring that there shall be a speaker the Premier shall be the speaker. By s. 53 prior to the first general election to the Provincial Assembly there is an interim vesting of legislative power in the Provincial Constituent Assembly. To my mind an appointed member of the Assembly can only resign in the same way as an elected member, that is “by notice in writing”, with the one difference that this notice must be directed to the Premier and not the Speaker.

It is apparent that the elections will not take place until 1979 as there has been tendered a Public Notice of the Provincial Electoral Officer showing that this is the case.

The applicant submits that he has not signed any letter or notice in writing. Thus he submits he has not acknowledged any document which would act as a resignation and all that he has done has been to present a draft letter for typing which he later requested be returned so he could alter the word “resign” to “leave without pay”.

Speaking generally, a signature is the writing, or otherwise affixing, a person’s name, or a mark to represent his name, by himself or by his authority (The Queen v. The Justices of Kent[dcxiii]⁸) with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed.

N1>An agreement in writing must be signed either by all the parties, or by the party to be charged therewith, in such a manner as to authenticate it. Under the Statute of Frauds (1677) it is sufficient that the writing shall be signed by the party to be charged therewith and various statutes which require a contract to be in writing refer only to signature by one party. Other statutes require the writing to be signed by both or all the parties. Where a statute simply requires an agreement to be in writing, without expressly referring to signature, it may be sufficient if the agreement is signed by the party to be charged therewith. In other documents the signature must be by the party to whose intention the document gives effect: in an appointment, by the appointer: in the creation of a trust, by the settlor, in an assignment, by the assignor; in an acknowledgement, by the person who makes the acknowledgement; in a notice or demand, by the person giving the notice or making the demand: see Halsbury’s Laws of England, 4th ed., vol. 12, par. 1451.

N1>Clearly, in my view a notice in writing showing an intention to resign under s. 13 of the Constitution of the Central Provincial Government, must be signed by the person giving the notice for it to have any effect.

N1>The applicant did not sign or otherwise acknowledge (as by placing his mark) the notice which purports to be his resignation. For this reason I grant the application for in my view he did not in fact resign from the Central Provincial Assembly.

N1>Pursuant to O. IV, r. 11 of the Rules of Court, I make the following Declarations:

N2>1.       That Taumaku Morea has not resigned his seat in the Central Provincial Assembly.

N2>2.       That Taumaku Morea is entitled to take his seat in the Central Provincial Assembly and has been so entitled as from 18th July, 1978.

Declarations accordingly.

Solicitor for the applicant: M. Kapi, Public Solicitor.

Solicitor for the respondent: C. Maino, State Solicitor.