N7811

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 802 of 2017

BETWEEN
MICHAEL SINGAN
First Plaintiff

AND:
JOHN AINI
Second Plaintiff

AND:
KEN BART
Third Plaintiff

AND
Rt. Honorable, Sir JULIUS CHAN
First Defendant

AND:
NEW IRELAND PROVINCIAL ASSEMBLY
Second Defendant

AND:
NEW IRELAND PROVINCIAL GOVERNMENT
Third Defendant

Kavieng:  Kangwia, J
2018: 07 August & 20 November

ADMINISTRATIVE LAW - Originating Summons – Provincial Assembly Presidents – Resignation from New Ireland Provincial Assembly – Law silent on resignations to contest National Elections – Whether Application for leave amount to resignations - Whether Leave appropriate to contest General elections and upon being unsuccessful return to continue as presidents - Minister author of instruction to resign - Defendants not privy to instructions of Minister yet followed Minister’s instruction and deemed to have acted lawfully 

PRACTICE AND PROCEDURE - Plaintiffs failed to name correct parties in this proceeding hence a failure to plead a cause of action occasioning an abuse of process - The Daki Mao case relied on by the Plaintiffs - has no relevance as it was an endorsement of consent orders out of a mediation - Case dismissed for abuse of process.
 
Cases Cited
 
Daki Mao & Others v Sheila Haro & Morobe Provincial Government – OS No 646 of 2017 (Unreported decision of 10 November 2017

Counsel:

E. Minimbi, for the Plaintiffs
J. Kuwimb, for Defendants

20th November, 2018

1.	KANGWIA, J:   The Plaintiffs by Originating Summons sought the following declaratory orders:

1. A declaration that the 1st, 2nd & 3rd Plaintiffs are still the lawfully elected Presidents of their respective Local Level Governments (LLGs).

2.	A declaration that the purported resignation of the 1st, 2nd & 3rd Plaintiffs as LLG Presidents and members of the New Ireland Provincial Assembly by the 1st, 2nd & 3rd Defendant is invalid and deemed null and void.

3.	A declaration that the letters requesting leave from office tendered by the 1st, 2nd & 3rd Plaintiffs cannot be deemed by the 1st, 2nd & 3rd Defendants as an official resignation of the Plaintiffs from the office.

4.	A declaration that the three Deputy Presidents from the respective LLGs of the 1st, 2nd & 3rd Plaintiffs who were allowed to be sworn in by the 1st Defendant as members of the New Ireland Provincial Assembly is not in compliance with the Provincial Standing Orders and cannot be recognized as members of the Provincial Assembly.

2.      The defendants opposed the application.

3.      The background that led to the proceedings are these. The Plaintiffs were declared as duly elected presidents of their various Local Level Governments on various days in July 2013. 

4.     On 28 March 2017 the Minister for Inter Government Relations issued an instruction that all LLG presidents who desired to contest the National Elections were to resign before they could contest the National Elections.  

5.	In 2017 the Plaintiffs contested the National Elections. They applied for leave for the duration of the election period and nominated to contest various electorates in the New Ireland Province. 

6.	Their leave applications were sent to the Acting Provincial Administrator for New Ireland Province. The Acting Provincial Administrator treated the leave applications as resignations and sought further advice from the Secretary for Provincial and Local Government Affairs.

7.	On 28 June 2017 the Secretary for Provincial and Local Government affairs in a circular reaffirmed the decision by the Acting Provincial Administrator that treated the Plaintiffs leave applications as resignations from office in line with the Minister’s instruction of 28 March 2017. Following those instructions, the Provincial Executive Committee appointed the Deputy LLG Presidents as Acting Presidents.

8.	The Plaintiffs while relying on the affidavit of each Plaintiff also annexed a copy of the circular instruction dated 28 March 2017 by the Minister for Inter Government Relations on the requirements for resignation, a letter by the Secretary for Provincial Affairs to the Provincial Administrator for New Ireland Province affirming the acceptance of leave applications as resignations and the Sanding Orders of the New Ireland Provincial assembly.

9.	The Plaintiffs submitted that the law was silent on the issue of resignation by LLG Presidents who wished to contest the National Elections. Since the law was silent on resignations they could not resign and therefore they applied for leave to fill the vacuum created by law and could return if they were unsuccessful in the National Elections.

10.	They relied on the case of Daki Mao & Others v Sheila Haro & Morobe Provincial Government – OS No 646 of 2017 (Unreported decision of 10 November 2017) which declared among others that the Circular issued by the Minister for Inter Government Relations requiring LLG Presidents to resign was null and void as supporting their submissions.

11.	They also submitted that the swearing in of the Deputy LLG Presidents by the Defendants to sit in the Provincial Assembly in the Plaintiff’s positions were void and of no effect as they were not provided for in the Standing Orders of the New Ireland Provincial Assembly and no vacancy existed to be filled.

12.	The Defendants countered that they were lawfully empowered to treat the Plaintiff’s leave applications as resignations. They submitted that they obeyed the instructions in a circular dated 28 March 2018 from the Minister for Inter-Government Relations who was responsible for the administration of Local Level Governments under the Local-Level Government Act 1997.

13.	They further submitted that the Plaintiffs remedy lay in a Judicial Review of the decision by the Minister for Inter-Government Relations and not against the Defendants as they only followed the determinations by the Minister. They were not the source of the decisions made hence they should not have been sued.
   
14.	The undisputed facts are that the Plaintiffs did not resign from their positions as Presidents of the various LLG’s. They contested the National Elections. Following the circular instructions of the Minister the Defendants deemed the Plaintiffs to have resigned by their leave applications and took appropriate steps to fill their vacancies.

15.	It is apparent that there is no specific statutory provision that caters for the resignation of LLG Presidents before contesting the National elections. 
16.	The law is silent on whether the LLG Presidents who wanted to contest the National Elections must resign.  

17.	There are two views that surface out of this silence in the law.  

18.	First is the view held by the Plaintiffs that since they are not required by Statute to resign their post as LLG presidents, they could seek leave for the duration of the National Election period. They assumed that under the leave arrangement they could contest the National elections and return to their position as LLG presidents should they fail to get elected in the National Elections. 

19.	The second view is that held by the Defendants. They say that they followed the instruction from the Minister for Inter Government Relations who was empowered by s 27 (4) of the Constitution to supervise and oversee the affairs of the LLG’s.

20.	The main issue therefore is whether the instruction for resignation issued by the Minister lawful in circumstances where there was no statutory provision that provided for resignation of members of LLGs. 

21.	Put it another way, was it lawful for the Plaintiffs as members of LLGs to resign from their positions even though there was no statutory requirement for them to do so.

22.	These issues and other related issues are pertinent to the remedy claimed. 

23.	At the outset these issues in my view could not be adequately addressed by the Defendants. The Defendants followed instructions issued by the Minister. 

24.	The Defendants had no right to act on their own volition. They are deemed to have acted lawfully by following the instructions from the Minister and the Department of Inter-Government Relations. The decision that all members of LLGs who intended to contest the National General Election had to resign did not emanate from the Defendants. It originated from the Minister for Inter-Government Relations who was mandated by law to ensure good administration of LLGs. 

25.	There is evidence through written correspondence from the Minister and the Secretary for Provincial & LLG Affairs which is the Department that administers the affairs of LLG’s as to the procedure to be followed by all members of LLGs. They were to resign if they chose to contest the National Elections which included the Plaintiffs. 

26.	Whether the Minister erred or not is a matter that the Defendants are not privy to or at liberty to answer. In my view it would have to be the Minister and his department who would be the correct parties to answer the claims. They have not been named in this proceeding. This therefore follows that the Plaintiffs have in my view failed to name the proper parties to the proceedings. 

27.	They have sought declarations against persons who are not privy to the original instruction on resignations by members of LLGs. Orders sought against the Defendants in this proceeding cannot invalidate the decision made by the Minister or bind the Minister as he would be deemed a stranger in the current proceedings. The various decisions by the Defendants are secondary only and a flow-on from the Minister’s instructions. The Plaintiffs claim has no merit to go to trial in circumstances where the correct parties were not named and where the Defendants only obeyed instructions.  

28.	In failing to name the correct parties in the proceedings the Plaintiffs have failed to plead a cause of action amounting to an abuse of process pursuant to 12 Rule 40 (1) (c) of the National Court Rules.

29.	It is the opinion of the Court that the decision of the Minister should be the subject of a Judicial Review and not declarations by originating summons against the Defendants. 

30.	In passing I make mention that the Daki Mao case relied on by the Plaintiffs was not a determination after a hearing proper in the National Court. That decision was an endorsement only of consent orders arising out of a mediation between the parties. The decision in that case has not in any way swayed the determination in the present case. 

31.	By this determination it is not necessary to consider the other issues.

32.	This case is dismissed for abuse of process.

33.	Each party shall bear their own costs.

______________________________________________________________ 
Ashurst Lawyers : Lawyer For the Plaintiffs
Provincial Government In-House Lawyers: Lawyer For the Defendants