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Tomerop v Raminai [2021] PGNC 72; N8818 (14 May 2021)

N8818

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (IECMS) (JR) NO. 52 OF 2021

BETWEEN:
JOSEPH TENGE TOMEROP In His Capacity as Recommended Nominee to be Member of the National Agricultural Research Institute Council
Plaintiff

AND:
WESLEY RAMINAI In His Capacity As Minister For Sports and Higher Education, Research, Science and Technology
First Defendant

AND:
WAREA OROPA
Second Defendant

AND:
TOPUL RALI
Third Defendant

AND:
YALA YATU
Fourth Defendant

AND:
ORA RENAGI
Fifth Defendant

AND:
MARIA LINIBI
Sixth Defendant

AND:
RONNIE ILAM
Seventh Defendant

AND:
DOMINIC IRA
Eighth Defendant

AND:
NIMO WALTER KAMA
Ninth Defendant

AND:
ALBERT VARATAU
Tenth Defendant

AND:
PUBLIC SERVICE COMMISSION
Eleventh Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Twelfth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Thirteenth Defendant

Waigani: Miviri J
2021: 11^th &14^th May

PRACTICE & PROCEDURE – Originating Summons – Leave for Judicial Review – Locus Standi – Whether recommended Nominee qualifies – Arguable case – balance not discharged – Leave refused – Cost follow event.

Cases Cited:

Sampson v National Executive Council [2019] PGSC 102; SC1880

Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959

Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

National Housing Corporation v Asakusa [2012] PGSC 6; SC1165

Geno v The Independent State of Papua New Guinea [1993] PNGLR 22
Counsel:

E. Ngomba, for Plaintiff/Applicant
I. Mugugia, for State

RULING

14^th May, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 21^st April 2021 where he seeks leave pursuant to Order 16 Rule 3 of the National Court Rules against two decisions of the First Defendant made on the 23^rd March 2021 and published in the National Gazette No. G177.
   
2. Both took effect on the 19^th March 2021 headed appointment of Acting Director General of the National Agricultural Research Institute and Acting Appointment of the Interim Governing Council Members of the National Agricultural Research Institute.
   
3. Warea Orapa was appointed Acting Director General for a period of three months.
   
4. In the case of the Acting Appointment of the Interim Governing Council Members of the National Agricultural Research Institute the following were appointed; Chairman :Topul Rali

Deputy Chairman : Yala Yatu

Council Members : Ora Renagi, Maria Linibi, Ronnie Ilam, Dominic

Ira, Nimo Walter Kama, Albert Veratau.

5. The originating summons by the Rules must seek leave only and no other remedy. Here the plaintiff is also seeking interim Stay which was abandoned when counsel was directed to the relevant rules Order 16 Rule 3. It draws no measure against.
   
6. The decisions were made 23^rd March 2021 so there was no delay and this ground was made out to satisfy Order 16 Rule 2 of the National Court Rules in favour of the applicant.
   
7. The locus Standi of the applicant was as a recommended nominee to be a member of the National Agricultural Research Institute Council. Likened to Sampson v National Executive Council [2019] PGSC 102; SC1880 (26 November 2019) the applicant’s term as non ex officio member of the council expired on the 14^th July 2019. He was not reappointed or given a substantive position as was the case of Acquila Samson who was accorded the position of Provincial Administrator Western Province. It was just gazettal that awaited to formalize the appointment. He therefore in all respects was due to that position. He expected that he would be in that position. Because all process had been proceeded with except for the gazettal. It was a Public Service Position as head of a province likened to a departmental head and would have run by contract except for the gazettal. He had sufficient interest as held by the Supreme Court. It was not a position that would have run for three months as was the case here. It would have run into three or four years at the prime depending on the contract that was executed. It was not the same as here for the applicant. He was not even the incumbent to that position.
   
8. These are not the facts here of the applicant recommended nominee whose term has expired and is yet to be considered. He is not even in the chair as was the case of Aquila Samson (supra). The sufficiency of his interest is not likened to Aquila Samson (supra). He is in the que not even confirmed. Hence to allow his interest as sufficient based on this case would be a misapplication of the law in that regard. The definition is well set out by Steamships Trading Company Ltd v Minister for Lands and Physical Planning [2000] PGNC 11; N1959 (10 May 2000) that:
   

“Generally, a plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the courts supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.”

9. What has happened is that when his membership expired his position in law expired; 14^th July 2019 was when his standing in law in that position terminated. It did not renew of its own accord but a process to be followed in the various provisions of NARI Act 1996. He has not benefitted through that process to acquire rights enforceable in law emanating. He has no standing because he has not been processed through that Act. He is just a recommended nominee who has to go through that process. He has not even gone past the first step to qualify as was the case of Aquila Samson (supra) who had a lot more than first step.
   
10. The reason is simple judicial review is not for busy bodies and the like; it is a very restrictive domain and the grounds to invoke by leave are very restrictive and stringent: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). And these are not mere assertions but is the law enforced in all spheres that judicial review is open to: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Which also echoes what was stated in National Housing Corporation v Asakusa [2012] PGSC 6; SC1165 (1 March 2012) of the proper pleadings test.
    
11. His facts set him out as a busy body rather than a person with a genuine sufficient interest as was the case of Acquila Samson (supra). To give heed to his plea would be to open the flood gates for like to enter which is not the domain that judicial review is. Even the acting appointment is for only three months. And it would be no utility served if leave were granted only to find that the acting appointment period lapses and the incumbent will have to go through anew. Because it was affected on 19^th March 2021 and will lapse on the 19^th June 2021 rounding of the three months appointment. It must also be kept in mind that the acting appointments made by the Minister were in accordance with Higher Education (general Provisions) (Amendment) Act, sections 153 (3) (c) where the Minister was empowered to appoint an interim governing council. Similarly, and reliance upon section 152 (3) (e) of the same Act to appoint the acting appointment of the director. The Minister has not acted outside the discretion conferred him by law. He is the appointing authority by those provisions and has exercised that discretion in so appointing the acting Director General and the interim governing council.
    
12. The aggregate of all is that it is not even arguable as demonstrated in Geno v The Independent State of Papua New Guinea [1993] PNGLR 22. Even reliance on section 9 and 10 of the Regulatory Statutory Authorities (Appointments to Certain Offices) Act has been amended and is no longer applicable. Because what is the law is the Regulatory Statutory Authorities (Appointments to Certain Offices) Act 2013, No. 28 of 2013. These do not comfort nor do they give leeway for the applicant. He may have been within time to bring this action and it befalls because there are no internal avenues open, he has like a contract that has come to an end is terminated for all intent and purposes. He has not satisfied the requirements for leave and his action fails.
    
13. The formal orders of the Court are:
    
    • (i) The application for leave is refused.
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Tamutai Lawyers : Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for First Defendant