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Sabuin v Marape [2021] PGNC 499; N9366 (11 June 2021)

N9366

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 108 OF 2019

TUNOU SABUIN - in his capacity as Managing Director of Papua New Guinea Forest Authority
First Plaintiff

KEN MONDIAI - in his capacity as President of Foresters of Papua New Guinea
Second Plaintiff

PAPUA NEW GUINEA FOREST AUTHORITY
First Plaintiff

-V-

HON. JAMES MARAPE - in his capacity as Prime Minister and Chairman of National Executive Council
First Defendant

TAIES SANSAN - in her capacity as Acting Secretary of Department of Personnel Management
Second Defendant

DANIEL ROLPAGAREA - in his capacity as State Solicitor
Third Defendant

HON. JOE SUNGI, MP - in his capacity as Minister for Public Service
Fourth Defendant

THE NATIONAL EXECUTIVE COUNCIL
Fifth Defendant

DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
Sixth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Kariko, J
2021: 3^rd, 9^th & 11^th June

CIVIL PRACTICE & PROCEDURE - standing – whether reasonable cause of action disclosed – whether claims tenable – correct mode of proceeding

Cases Cited:
Papua New Guinea Cases

Kerry Lerro v Phillip Stagg & Ors (2006) N3050
Kiee Toap v The State (2004) N2731
Mt Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007
Phillip Takori v Simon Yagari & Ors (2008) SC905
Rabaul Shipping Ltd v Rupen (2008) N3289
Ruing v Marat (2012) N4672
Telikom PNG Ltd v ICCC and Digicel (2008) SC906
Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

Overseas Cases

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Counsel:

Mr P Kewa, for the Plaintiffs
Mr J Bakaman, for the Sixth and Seventh Defendants
No appearances for the remaining Defendants

RULING

11^th June, 2021

1. KARIKO, J: This proceeding purportedly concerns the functioning of:
   
   • the office of the Managing Director of the Papua New Guinea Forest Authority (the MD); and
   • the National Forest Board (the Board).
     

FACTS

2. Evidence filed by the plaintiffs disclose the following relevant facts.
   
3. Tunou Sabuin was appointment for a term of 4 years as the MD by the National Executive Council in its Decision No. 152/2017 dated 3^rd May 2017. The appointment was duly gazetted in National Gazette No. G392 dated 18^th May 2017. The gazettal notice was given pursuant to s.34 of the Forestry Act 1991 and s.6 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. The term of appointment was “for a period of four years, with effect on and from the 21^st March, 2017”, consistent with National Executive Council Decision No. 152/2017.
   
4. Mr Sabuin was suspended from office by the National Executive Council on 21^st January 2019, but he successfully challenged that decision in this Court, which upheld his review application on 26^th June 2019, quashed the decision, and ordered his reinstatement. The Court also ordered that the State facilitate the signing of a contract for the employment of Mr Sabuin, which had not been drawn up.
   
5. Notwithstanding the court order, the required contract of employment was not prepared nor executed when the four years term of appointment stipulated by the gazettal notice lapsed on 21^st March 2021.
   
6. By notice letter dated 9^th February 2021, Mr Sabuin informed the Board of his interest in seeking renewal of his appointment.
   
7. On 19^th March 2021, the second plaintiff as the Acting Chairman of the Board, wrote a Minute to the Minister for Forest. In the Minute, Mr Mondiai advised of the resolutions of the Board at its special meeting held on 18^th March 2021. Among others, the meeting resolved that upon the expiration of Mr Sabuin’s term:
   
   • He would act as the MD while the formal process for the appointment of the MD took its course; and
   • He heads a list of three preferred candidates, to be recommended for the appointment.
     
8. These recommendations were referred to the Public Services Commission in a letter dated 22^nd March 2021, and signed by Mr Mondiai on behalf of the Board.
   
9. On 31^st March 2021, the Commission acknowledged by letter, receipt of the recommendations, and advised that it endorsed the three candidates as suitable and qualified persons for the appointment.
   
10. Since that acknowledgement, there has been no progress in the appointment of an acting MD or the MD pursuant to The Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.
    
11. The Minister for Forests by letter dated 27^th April 2021, issued an instruction that meetings of the Board are suspended until further notice.
    

The claims

12. In the originating summons, the plaintiffs seek a number of declaratory orders, the main ones being:
    
    • The appointment of Mr Sabuin as the MD pursuant to NEC Decision No. 152/2017 dated 3^rd May 2017, and the notice in National Gazette No. G392 dated 18^th May 2017, is still current and valid.
    • The service rendered by Mr Sabuin as the MD since that appointment does not count as service in the Public Service.
    • The appointment term of 4 years decided by the NEC and accordingly gazetted is null and void.
    • Alternatively, the appointment of Mr Sabuin as acting MD by the Board on 18^th March 2021 is valid and current.
    • Further, Mr Mondiai’s membership on the Board and his position as Deputy Chairman and Acting Chairman of the Board is valid and current.
      
13. The declarations sought in respect of Mr Sabuin are based on:
    
    • the contention that these relief are consistent with the proper construction of certain provisions of the Constitution, the Forest Act 1991, the Interpretation Act 1975, the Regulatory Statutory Authorities (Appointment to Certain Offices) Act) 2004, and the Public Services (Management) Act 1995; and
    • the argument that it is a matter of public interest and for continuity of good administration.
      
14. The declarations sought in respect of Mr Mondiai and the Board are allegedly based on the fact that the Minister regards the recent meeting resolutions of the Board, including the appointment of Mr Sabuin as caretaker or acting MD, to be invalid for lack of quorum.
    
15. Pending the substantive hearing of the claims, the plaintiffs seek interim injunctive orders against the defendants, their servant, restraining them from interfering with Mr Sabuin in performing his duties as the MD, and Mr Mondiai from performing his duties as the Acting Chairman of the Board.
    

CONSIDERATION

16. After hearing the applications for the interim injunctions, I adjourned to consider my ruling. On further reading of the documents relevant to the application, questions emerged as to standing of each of the plaintiffs and their respective causes of action. If a plaintiff has no standing or has no cause of action, then his claim is susceptible to being dismissed (under O12 r40 National Court Rules). I therefore recalled counsel, explained to them the position, and asked them for further submissions on the questions. I heard the further arguments.
    
17. The relevant legal principles concerning applications made under O12 r40 are clearly set out in cases such as Kiee Toap v The State (2004) N2731; Kerry Lerro v Phillip Stagg & Ors (2006) N3050 and Phillip Takori v Simon Yagari & Ors (2008) SC905. The Rule gives the Court discretionary power to terminate actions or claims which are an abuse of process, or are plainly frivolous or vexatious or untenable; (see also Mt Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007).
    
18. On reading the originating summons and after exchange with counsel, there seems to be two causes of action – a claim by Mr Sabuin that he is still the MD according to law; and a claim by Mr Mondiai/the Board that there is interference with the Board.
    
19. In my view, the declarations sought in the substantive proceeding are for Mr Sabuin’s own interest. He essentially claims that upon the construction and application of a number of relevant legislative provisions, he is still the MD notwithstanding the fact that:
    
    • (1) the term the four years stated by NEC Decision No. 152/2017 dated 3^rd May 2017, and the notice in National Gazette No. G392 dated 18^th May 2017, has lapsed; and
    • (2) the legal process of appointing a successor (acting or substantive) is still in progress.
      
20. Interestingly, Mr Sabuin further contends that the legislative provisions will lend support to the proposition that the four years term only takes effect when the outstanding contract of employment is eventually signed.
    
21. Mr Sabuin filed this proceeding as the MD. All the documentary evidence authored by Mr Sabuin or the Board, talk of his term of appointment having expired on 21^st March 2021, and he has been regarded by the Board as having a caretaker role since then. It is clear to me that his term expired on 21^st March 2021. The contract of employment would only confirm the same date as the date of appointment – the same date stated by the NEC Decision and the gazettal notice. Although Mr Sabuin insists that he is still the MD, he is not. He has no standing to issue this proceeding as the MD. If a plaintiff does not have standing to commence a suit, no reasonable cause of action is disclosed; Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844.
    
22. The Courts have followed the case of Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 that certain matters need to be established before a declaratory order can be made. One such factor is that there must be a controversy between the parties. Mr Sabuin states that the Minister views the recent Board resolutions as invalid, but no evidence was presented to support this allegation. It is relevant to note, that none of the defendants have questioned the Board’s appointment of Mr Sabuin as caretaker or acting MD. I find that there is no legal dispute between Mr Sabuin and the defendants that requires the intervention of this Court. Accordingly, the declarations sought should not be granted, and I find this action is an abuse of process.
    
23. The fact that the process for the appointment of the acting MD (s.9 the Regulatory Statutory Authorities (Appointment to Certain Offices) Act) or MD (s.4 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act) has not progressed, is a matter for the Board to pursue with the relevant authorities. It is not for Mr Sabuin. His term has expired. If he, as a short-listed candidate, wishes to compel the authorities (including the Ministerial Appointments Committee, the Minister for Forests or the National Executive Council, who co-incidentally have been named as defendants), to discharge their responsibilities and decide the appointment, then he should have filed for judicial review.
    
24. Where the decision of a government body or public authority is challenged, the appropriate proceeding to file is dependent on the relief being sought. If the relief sought is in reality an order in the nature of a prerogative writ such as mandamus, prohibition, certiorari or quo warranto, application by way of an application for judicial review under Order 16 of the National Court Rules is the correct mode; Telikom PNG Ltd v ICCC and Digicel (2008) SC906, Rabaul Shipping Ltd v Rupen (2008) N3289 and Ruing v Marat (2012) N4672. I consider that in reality, Mr Sabuin is disputing the view of the relevant appointing authorities that his term of appointment has expired. In essence, he is seeking certiorari to quash that decision.
    
25. The plaintiffs initially asserted that by the Minister’s instruction of 27^th April 2021, the Board was suspended. This is a misconceived interpretation of the relevant letter. The instruction merely suspended further meetings of the Board, period. Any challenge to the validity of the Minister’s instruction must also be resolved by way of judicial review. In later submissions, it was then suggested that the Minister nullified the Board’s recent resolutions (including the appointment of Mr Sabuin as caretaker MD), but there is no evidence to support this assertion.
    
26. I note that Mr Mondiai is a plaintiff in his capacity as the President of the Association of Foresters of Papua New Guinea. It is unclear what his cause of action is by suing in the capacity that he has. The Association is not involved in the appointment of the MD. Mr Mondiai has no standing to bring this action, and no reasonable cause of action is disclosed.
    
27. I also find no evidence that the Board properly authorized being a plaintiff in this proceeding. Counsel explained from the bar table that Mr Mondiai authorized the litigation because the Board could not meet due to the Minister’s instructions. That may be so, but the fact remains that the Borad has not approved this court action. I therefore find the Board has no standing in this proceeding, and no reasonable cause of action is disclosed on its behalf.
    

CONCLUSION

28. In the circumstances, I act pursuant to O12 r 40 and dismiss the proceeding under for disclosing no reasonable cause of action, for being frivolous (being untenable), and being an abuse of process. Costs are awarded in favour of the State who appeared on this application.

________________________________________________________________
Serria Legal Services: Lawyer for the plaintiff
Office of the Solicitor General: Lawyer for the Sixth and Seventh Defendants