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Agiru v Potape [2016] PGNC 411; N6528 (7 January 2016)

N6528

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 821 of 2015

BETWEEN:
GOVERNOR ANDERSON
PAWA AGIRU
Plaintiff

AND:
HON. FRANCIS POTAPE
and eight other members of the
HELA PROVINCIAL
ASSEMBLY
Defendants

Waigani: Hartshorn J
2016: 6^th January
: 7^th January

Application for interim injunctive orders

Cases Cited:
Papua New Guinea cases

Peter Ipatas v. Enga Interim Provincial Government and Danley Tindiwi [1997] PNGLR 101
Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831
Thadeus Kambanei v. The National Executive Council (2006) N3064
Canopus No 16 Ltd v. Maisi Trust Company Ltd (2008) N3401
Havila Kavo v Mark Maipakai (2010) SC1067

Overseas Cases

Nottingham Building Society v. Eurodynamics Systems (1993) FSR 468
Shepherd Homes Ltd v. Sandham [1971] Ch. 340

Counsel:

Mr. G. Gileng and Mr. J. Wohuinangu, for the Plaintiff
Mr. P. Ame, for the Defendants

7^th January, 2016

1. HARTSHORN J: This is a decision on an application by the plaintiff for interim injunctive relief. It is opposed by the defendants.

Background

2. Hon. Anderson Agiru the plaintiff (Agiru) is the Regional Member for Hela Province. He substantively seeks declaratory orders and injunctive relief in respect of his purported removal as Governor of Hela Province and the appointment of Hon. Francis Potape the first defendant (Potape) as Governor. Potape is the Open Member for the Komo-Magarima Electorate in Hela Province.

This application

3. The application is made pursuant to Order 12 Rule 1 and Order 14 Rule 9 (a) National Court Rules. Alternatively, s.155 (4) Constitution is relied upon.

4. Counsel for the defendants did not take issue with the National Court Rules and section of the Constitution relied on, and so I do not consider the jurisdiction issue further. I also mention that this is not a review of the decision of Koeget AJ in which His Honour dismissed the earlier court order granting relief. Both counsel agreed that there have been material changes in circumstances and that this court has the appropriate jurisdiction to hear this application.

5. At this juncture, I mention that notwithstanding that Mr. Ame announced that he was only counsel for the first defendant, I proceed on the basis that he appears also for the other defendants. This is because when Mr. Ame filed a notice of motion on 24^th December 2015 in this proceeding, it was filed on behalf of the defendants and Mr. Ame signed it on behalf of the defendants. There is no evidence before me that Mr. Ame has ceased to act for all of the defendants. Further, it was because of this reason that I ordered on 4^th January 2016, amongst others, that service upon Mr. Ame of the notice of motion the subject of this decision, was effective service on all of the defendants.

6. Agiru contends that the interim injunctive relief he seeks should be granted as amongst others:

a) The meetings to remove him as Governor for the Hela Province that purportedly took place on 22^nd December 2015 and 29^th December 2015 were clearly unlawful. There has been non-compliance with legislative provisions governing the procedures to be followed before a Governor of a Province can be removed from office;

b) He will suffer serious damage to his position as Governor of Hela Province – a position he holds by virtue of being elected in the National Elections, and as Chairman of the Hela Provincial Executive and Provincial Legislative. Specifically, he will not be able to carry on his work in relation to the PNG LNG project and associated matters in relation to Hela;

c) He has serious questions to be tried in the substantive proceeding and damages will not be an adequate remedy. Further, the balance of convenience favours the grant of the interim injunctive relief sought;

d) It is in the public interest that the interim injunctive relief sought be granted.

7. Potape contends that the interim injunctive relief sought should not be granted as amongst others:

a) Notice was given to Agiru by letter dated 14^th November 2015, pursuant to the Standing Orders and the relevant Organic Law requesting him to call a meeting of the Hela Provincial Assembly on 22^nd December 2015. He did not, and so a meeting proceeded on that date without him. There were nine other members of the Hela Provincial Assembly out of a total of fourteen at the purported meeting;

b) A notice of motion signed by ten Hela Provincial Assembly members to remove Hon Anderson Agiru as Governor was deferred to 29^th December 2015 in accordance with the Hela Provincial Assembly Standing Orders;

c) The meeting on 29^th December 2015 was held in accordance with the written advice of the Secretary of the Department of Provincial and Local Level Government;

d) The National Government through the Office of the Deputy Prime Minister and Minister for Provincial and Local Level Government has acknowledged and recognized Potape’s election as Governor by the Hela Provincial Assembly;

e) Agiru was not served with a copy of the notice of motion seeking his removal as that is not required pursuant to Order 8 of the Hela Provincial Assembly Standing Orders;

f) The fact that nine or ten out of a total of fourteen Hela Provincial Assembly members supported the election of Potape as Governor and the removal of Agiru as Governor is indicative of the strength of Potape’s support in the Hela Provincial Assembly and the Hela Province and should not be lightly disregarded by this court.

8. Counsel for Potape relied upon the decision in Peter Ipatas v. Enga Interim Provincial Government and Danley Tindiwi [1997] PNGLR 101 for the proposition that this court does not have jurisdiction to consider whether the Hela Provincial Assembly Standing Orders have been complied with and therefore presumably this court does not have jurisdiction to consider whether the meetings of 22^nd and 29^th December 2015 complied with the Hela Provincial Assembly Standing Orders. It is correct that Akuram J, held that this court does not have the jurisdiction to consider compliance with standing orders governing the conduct of Provincial Assembly meetings. That is that the decision to hold meetings or to decide the procedures and conduct the daily operations of the running of the business of the Interim Provincial Assembly is an internal matter, which the Assembly can decide for itself. Akuram J also held however, that this court has jurisdiction to consider compliance with Constitutional requirements as to the convening of meetings for the Assembly. In this instance, issue is taken with whether relevant provisions of the Provincial Governments Administration Act 1997 and the Organic Law have been complied with. I am satisfied that this court has the requisite jurisdiction in this regard.

9. I mention further that as to the advice from the Secretary Department of Provincial and Local Level Government, it does not have the force of law, it is merely an opinion. Similarly, the recognition by the Deputy Prime Minister of the purported election of Potape does not have the force of law.

Law as to interim injunctive relief

10. Agiru submits that as the relief that he is seeking is the grant of mandatory injunctive relief, as distinct from the more common negative injunctive relief, the considerations for such relief are contained in the decision of Lay J, in Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831.

11. Counsel for Potape did not disagree with this submission. As to the considerations for a mandatory injunction. I refer to my case of Canopus No 16 Ltd v. Maisi Trust Company Ltd (2008) N3401, in which I considered the PNG Power case (supra) and numerous others. I agreed with the considerations set out by Lay J and endorsed by Injia DCJ (as he then) was in Thadeus Kambanei v. The National Executive Council (2006) N3064.

12. I also referred to the case of Nottingham Building Society v. Eurodynamics Systems (1993) FSR 468 and reproduced this passage:

“In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’ in the sense described by Hoffman J.

Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo.

Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish this right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish be right, the less will be the risk of injustice if the injunction is granted.

But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory state. Those circumstances will exist where the risk of injustice if this injunction is refused, sufficiently outweigh the risk of injustice if it is granted.”

Putting the matter quite shortly:

“Where does the balance of convenience lie?” or, to my mind the preferable formulation of the issue: “which course carries the lower risk of injustice?””.

13. As to which course is likely to involve the lower risk of injustice if it turns out to be wrong, by this is meant, “...the granting of an injunction to a party who fails to establish its right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial.”: Megary J. in Shepherd Homes Ltd v. Sandham [1971] Ch. 340, 351.

14. The first consideration is whether Agiru will suffer serious damage to his position as Governor if the injunctive relief is not granted. Clearly, he will not be Governor if the injunctive relief is not granted but does that mean he will suffer serious damage? I am not sure that it does. He will not be able to continue as Governor and perform all the duties that position entails.

15. Secondly, has he established a serious question or questions to be tried? When one has regard to s. 12(3) Provincial Governments Administration Act 1997, it is clear that it can be interpreted to mean additional meetings in addition to the ordinary meetings under s.12. Consequently, as the number of ordinary meetings had not been exhausted, a serious question arises as to whether s. 12(3) (a) is able to be relied upon by the defendants.

16. Further, there are serious questions to be tried concerning the validity of the purported meetings on 22^nd and 29^th December 2015 when it is contended that Agiru was ready and willing to call such meetings, but did not call the two meetings relied upon by the defendants. This calls into question whether there was compliance with the Organic Law.

17. There are also serious questions to be tried as to whether the Assembly Clerk received the notices of 14^th December and 22^nd December 2015, whether he prepared agendas and called the meetings pursuant to the Standing Orders, the venue of both meetings, and whether the court has jurisdiction in respect of the Standing Orders.

18. Further, serious questions to be tried are raised as to the validity of the purported notice of motion purportedly debated and voted on and whether Agiru was entitled or required to be given notice, including in order for him to be accorded the rights of natural justice.

19. As to the balance of inconvenience, in the context of this case involving the position of Governor, I am mindful of the comments of Injia CJ in the case of Havila Kavo v Mark Maipakai (2010) SC1067 where at paragraph 34 His Honour said:

“There is a greater risk to good administration of the province when a new person who has no proven track record of management of the office of the Governor is allowed to take over the administration in the short period during the currency of court proceedings. As the evidence produced by the appellant shows, the provincial administration can be quite unsettling, could easily turn chaotic and could result in irreparable damage which the appellant’s administration could find itself difficult to repair if it wins the appeal and the action in the National Court.”

20. His Honour further stated at paragraph 37 that:

“As for the public interest in good administration, the position of the Governor of the province is an important office. It is the top political and executive post in the province. The position is established by Constitutional Law and by the same law, the position of the governor is vested in the MP representing the provincial seat. He is also the chairman of the provincial Executive. That person is directly elected by the people to represent the people of the province at the provincial level and by virtue of that Office, he holds the office of the Governor. The same cannot be said of any other MP or MPA aspiring to be the Governor. That other person’s assumption of office must be done in strict compliance with the mandatory requirements of Section 20 and Section 21 of the OLPLLG. The removal of the incumbent Governor for reasons and under the process specific in (s.) 20 of the OLPLLG and placing the administration of the province on a new person under s. 21 of the OLPLLG in the interim period pending the determination of court proceedings, is so exceptional a course to be taken: and unless the Court is satisfied, having regard to all the circumstances, that the challenge to the process of his removal from office is prima facie so hopeless or so lacking in merit; an incumbent Governor should not be easily removed from office. To do otherwise is a recipe for political chaos and instability that may compound the problems in the provincial administration and (be) prejudicial to (the) good administration of the province. It can easily lead to erosion of public confidence in the effectiveness and integrity of the office of the governor and the provincial administration.”

21. Agiru relies upon these statements of the Chief Justice and the reasons therein. Potape’s counsel submits that the balance of convenience lies with Potape as he clearly has the majority support of the Hela Provincial Assembly. In this regard, I mention that it is not merely a question of superior numbers. If it turns out in the substantive proceeding that the law of this land that must be complied with has not been, then injustice will have been caused to Agiru, if the interim relief sought is not granted.

22. Given the matters to which I have referred, the next consideration is which course carries the lower risk of injustice if it turns out that the granting or refusal of the injunctive relief turns out to be wrong.

23. To my mind the lower risk of injustice will occur if it turns out to be wrong, if the status quo that existed before the events occurred that resulted in this proceeding being issued is maintained. If Potape ultimately is successful in the substantive proceeding then he will be vindicated and be Governor. Until the determination of the substantive proceeding however, the balance of convenience favours, and in my view the lower risk of injustice will occur, if the injunctive relief sought is granted.

Orders

24. I make orders in terms of paragraphs 4, 5, 6 and 7 of the notice of motion the plaintiff filed 4^th January 2016.
__________________________________________________________________
Posman Kua Aisi Lawyers: Lawyers for the Plaintiff
Ame Lawyers: Lawyers for the Defendants