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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 5 OF 1995
BETWEEN: ANDREW ARIAKO, MEMBER FOR MIKAREP CONSTITUENCY IN THE MADANG PROVINCIAL GOVERNMENT
PLAINTIFF
AND: 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 AJ
11 January 1995
INJUNCTIONS -Interlocutory injunction - Principles upon which granted - serious question for determination - Balance of convenience - serious question to be determined - Balance of convenience interlocutory injunction sought to be granted - Injunction available.
MEMBERS OF PROVINCIAL ASSEMBLY - Non compliance with provisions of Provincial Constitution - Resignation by Speaker of Provincial Assembly - Notice of Resignation to Clerk of Assembly - Acceptance of Notice of Resignation by Acting Clerk of Assembly - Query whether Clerk had power to accept letter of resignation - Madang Provincial Constitution
On an application for an interlocutory injunction to restrain the Acting Clerk of the Madang Provincial Assembly from convening the meeting of the Assembly.
Held
(1)  t thare is a serious ious issue(s) to be determined; and
(2) ټ&#that that the bala balance of convenience favours the grant of the interlocutory injunction
Cases Cited
Public Employees AssociatioPapuaGuinea and Napoleon Biyuwo Liosi -v- Public ServiServices Cces Commission.
Robinson v National Airline Commission [1983] PNGLR 476.
National Airline Commission Trading as Air Niugini v National Airlines Employees Association [1992] PNGLR 291.
Counsel
P Paraka, for the Plaintiff.
11 January 1995
RULING
SAWONG AJ: This is a ruling motiomotion by the Plaintiff seeking an interim injunction against the three defendants. The Plaintiff in his notice of motion, seeks the following orders:
"1. & ThatSece d Denendant/dant/dant/Respondent, Mahuyu Singoa, be restrained from calling and or convening an Assembly meeting for the MaProvi Asseuntilsubstantive action in this Originating Summons is finally dety determinermined byed by this this Court.
2. &##160;; C60ts bsts be in t in the cause.
3. ; S60h fucther and other orer orders as the Courts fit>
sence, the Plaintiff is seeking to restrain the Acting Assembly Clerk oerk of thef the Mada Madang Provincial Assembly from conveningssembetinghe Madang Provincovincial Aial Assembssembly 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. That Affidavit was deposed on the 10th of January, 1995 and filed in this Court on the 11th of January, 1995. The brief facts as deposed to by Mr Paraka in his affidavit are as follows. He says that on the 10th of 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 Madang Provincial Assembly for a meeting on Wednesday the 11th of 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 the 5th of January, 1995. After the Provincial General Elections in December, 1994, the Madang Provincial Assembly first met at 10:00 am on Friday 30th of December, 1994. The Provincial Assembly had 24 members. There were two groups vying for and to form the next Provincial Government. One was led by the Plaintiff with eleven other members a total of twelve members and the other was led by Mr Mathew Gubag with eleven other members also a total of twelve members. On the 30th of December, 1994, the Acting Clerk of the Assembly convened the Assembly and all the members of the Assembly and all twenty-four 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 Provincial Member for Bundi Constituency. Mr Mahuyu Singoa was asked whether he accepted the nomination as a Speaker and he indicated that he did accept the nomination. The Plaintiff then moved that the nominations be closed and 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 Clerk of the Assembly. Subsequently, Mr Singoa was sworn in as Speaker of the Provincial Assembly.
After the Speaker received legal advice in relation to that query, 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. declaration that the elhe election of Mahuyu Singoa, as Speaker of the Madang Provincial Assembly on Friday 30th of December, 1994 is valid.
2. ټ&##160;; A dation that the purported resi resignatignation ofon of Mahu Mahuyu Singoa as Speaker of the Madang Provincial on the 30th of December4 is invalid and null and void and of no effect.
3. ـ A declaration thhuyu SingoSingoa is still the lawfully elected Speaker of the Madang Provincial Government."
There are several other relief in the nature clara and s being sought by the Plaintiff in the OrigiOriginatinnating Sumg Summons which are serious issues to be determined eventually in the substantive hearing.
The law relating to Interim Injuction is well settled in this jurisdiction. Before an interim injunction can be granted the applicant must satisfy the Court that:-
(a) &#there is serious issue toue to be determined; and
(b) ; the balance ov conveniencnience favours the grant of the injunction.
And so in order for the Court to decide whether to grant the relief sought in this motion depends upon two issues. 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.
So far as the issue of whether there is a serious issue to be determined in this case is concerned, Mr Paraka made the following submissions. He 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 constitutional provisions of the Madang Provincial Constitution. The issue involves the election and resignation of the Speaker pursuant to the provisions of Section 13 of the Constitution of the Madang Province. He submitted that in accordance with Section 13 of the Madang Constitution, 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 Assembly Clerk. He submitted that only the Assembly constituted by the duly elected members of the Provincial Government can decide whether to accept or reject his 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 he informed the Assembly. He submitted that this was wrong. He submitted that the actions taken by the Second Respondent as a matter of law were wrong as it was 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 that the case is not speculative one.
In regard to the second aspect, Mr Paraka submitted that if an injunction is not granted than the plaintiff will suffer or that 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 issued raised and contained in the Originating Summons are serious issued 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 plaintiffs interests maybe jeopardised. I am also of the view that in all the circumstances of this case, the balance of convenience favours the granting of an injuction. A brief summary of the Madang Provincial Constitution will help in determining whether issues passed 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. at the Acting Clerk of k of the Assembly be restrained from convening a meeting of the Madang Provincial Assembly until the substantive action in the Originatinmons nallyrminethis Court.
2. <       That the in injmnction be n be returnable before the National Court on Friday the 13th of January, 1995 at 9:30 am.
3. ; The cosi be e the cause."use."
Lafor tainti160; < &1600;t Paul Parl Paraka Lawyers.
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