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Herowa v Eoe [2023] PGNC 383; N10519 (13 October 2023)

N10519

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 57 OF 2023(IECMS)

BEN ANUBI HEROWA As Representative of Tapero clan to Juha Special Purpose Authority
Plaintiff

V

HON. SOROE EOE MP As MINISTER FOR INTERGOVERNMENT RELATIONS
First Defendant

And
DEPARTMENT OF PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS
Second Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

And
PETER ANDAMA, HAPIALU TAMI, ALEX ARABIA, CHARLIE HOGGA, PAULA HEPITA, THOMAS TAYANDA, JAMES ALUA & TOMOMA KIKAKO, as purported Members of Juha Local Level Government Special Purposes Authority
Fourth Defendant

Waigani: Miviri J
2023: 20^th September, 13^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Leave Application for Judicial Review – Order 16 Rule 3 (2) (a) (b) Statement & Affidavit Verifying – Affidavit In Support – Ministerial Determination Overriding Earlier Decision – Section 45 (4) Local Level Government Administration Act 1997– Section 4 (2) & 7 (2) Constitution of the Authority – Locus Standi – Internal Process – Arguable Cause – Delay – Balance Discharged – Leave Granted for Judicial Review –Costs Follow Event.

Cases Cited:
Hamaka v Dion [2016] PGNC 60; N6249
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
Takori v Yagari [2007] PGSC 48; SC905
Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690
Dupnai v Weke [2016] PGSC 43; SC1525

Counsel:
P. Harry, for Plaintiff
R. Mobiha, for Defendants

RULING

13^th October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application seeking leave for Judicial review pursuant to Order 16 Rule 3 (1) of the National Court Rules. His originating summons is in these terms: -
   
   • (i) Leave of the Court pursuant to Order 16 Rule 3 of the National Court Rules to review the decision of the First Defendant made on 07^th November 2022 which endorsed the fourth defendants as members of the Management committee of Juha Local Level Government Special Purposes Authority.
     
   • (ii) Cost of this proceedings.
     
   • (iii) Any other orders in the discretion of the Court.
     
2. The Order 16 Rule 2 Statement dated 26^th June 2023 of the applicant details he is a member of the Juha Local Level Government Special Purposes Authority representing the Tapero Clan in the PDL9 licence area in Hela Province. He was duly appointed together with others by their respective clans through the Juha Gas-Head Landowners Association on 25^th May 2022 and endorsed by the North Koroba Local Level Government on 09^th June 2022. Together with his colleagues’ nominees were endorsed as members of the Authority by the Minister for Inter-Government Relations Hon Wesley Nukundji MP in Instrument of Appointment dated 22^nd June 2022. The decision in respect of which relief is sought is the decision by the Minister for inter Government Relations Hon. Soroi Eoe MP made by Instrument of Appointment dated 07^th November 2022 and published in National Gazette No. G899 dated the 1^st December 2022 which had endorsed the Fourth Defendants as members of the Authority.
   
3. Leave is sought to bring that proceeding to a full hearing because he contends that he has locus standi. He is directly affected by the decision of the subject Minister. He has been displaced from his appointment and instead the fourth and the fifth defendants have been inserted. And his removal has been unceremonious, because the Minister did not have the power under section 45 (4) of the Local Level Government Administration Act to appoint and or revoke the appointment of members of the Authority in the PDL9 licence area set out in Clause (g) of the Proclamation and section 4 (2) of the Constitution of the Authority and acted ultra vires which is consistent with Hamaka v Dion [ 2016] PGNC 60; N6249 (11 April 2016) and relevantly is the case here. Accordingly, it is appropriate to follow that application here.
   
4. And having come to that conclusion the Minister did not follow his colleague Predecessor Honourable Westley Nukundji’s existing Instrument of the 22^nd June 2022 endorsing the appointment of the plaintiff with his colleagues of as members of the Authority not revoked outstanding valid and enforceable. In so doing he had breached clause (g) of the of the Proclamation and 4 (2) of the Constitution of the Authority with the unlawful act of endorsing non project area landowners in the likes of Martin Kopilyo who was from Tsak valley Enga Province, and Paula Epita from Mt Hagen Western Highlands Province when only members of the Clans with PDL9 licence area were authorized to be included in not without as was the case here. It was an improper exercise of discretion by the Minister because it breached the Ministerial Determination published in the National Gazette G188 of the 13^th March 2019 that determined that Jugu Clan as a beneficiary Clan of the Tuguba Tribe in the PDL1 Licence Area. There was no express authority to deviate as here. Because the Minister did not endorse the fourth defendants on the basis that they were duly appointed by the Nominating bodies following that process under sections 4 and 5 of Constitution of the Authority without the endorsement of the North Koroba Local Government. It was not a proper exercise of discretion also to appoint the chairman by the Minister by that instrument of the 07^th November 2023. Because it followed that there was ultra vires section 17 (1) and (2) of the Constitution of the Authority. The chairman and his Deputy were not elected by members of the authority.
   
5. These in my view are proper basis for permission of the Court to bringing the proceedings proper into the domain of the Court for its hearing and determination for Judicial Review. In other words, the leave stage is used to identify and filter out at an early-stage claims which maybe trivial or without merit. Here that is not so of the case pleaded. Because as it is pleaded there are arguable basis to warrant leave for a full hearing of the matter. Because “The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989).”
   
6. It follows that the pleading here warrants proper grounds for Judicial review. Because declaration is sought that the decision of the Minister was unlawful and invalid of no legal effect when he issued the Instrument of appointment dated the 07^{th of} November 2022. And further certiorari is sought to bring up that decision into Court and to quash it. Following that the decision making the fourth defendants as purported members of the Authority be declared unlawful invalid and of no legal effect. And further they be restraint from holding themselves out as purported members of the Authority. Including restraint from transacting on the Kina Bank Account No. 27763613 of the Authority and any other Bank Account of the Authority pending the determination of the proceedings. These in my view are proper basis for leave for Judicial review: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008), affirmed and on par with Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
7. The assertion in summary here being that the subject Minister has exceeded his authority in that decision that he took appointing the fourth and the fifth defendants as members of the Juha Local Level Government Special Purpose Authority. The action prima facie exceeded his authority. And he committed errors of law and made a decision that was not proper given, Kekedo (supra) Independent State of Papua New Guinea v Kapal [1987] PNGLR 417. These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court, Asakusa supra.
   
8. As it is to deny would be to derail this litigant from the seat of Justice: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007). This is an action that derives from and by the operation of a law particulars details set out above and the plaintiff is properly before the Court. This is not a case where the application of Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 (3 April 2002) must be the basis as he was by the authority earlier given coming by virtue of that fact no fault of his plummeted as set out above. He ought to bring that out for a full hearing in Judicial review. He is therefore accorded leave as pleaded his originating summons of the 07^th of June 2023 filed 12^th June 2023.
   
9. The locus standie of the plaintiff is discharged given including that there is no internal process except to come here as pleaded. Which discharges both requirements to the required standards. In the my view the same would be so of Delay in view that this is reinstituted after leave to withdraw was obtained from this Court in OS No 242 of 2022 on the 24^th November 2022 presided by the Deputy Chief Justice Kandakasi. This is properly a leave application that has not delayed in the sense of Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). It is not an inordinate delay by its facts here. This requirement is discharged on the balance required. The aggregate in law is that this application is granted as pleaded by the originating summons of the 07^th June 2023 filed of the 12^th June 2023. Costs will follow the event forthwith.
   
10. The formal orders of the Court are:
    
    • (i) Leave is granted for Judicial review as pleaded by the Originating summons of the 07^th June 2023 filed of the 12^th June 2023.
      
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Harry Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor Generals: Lawyers for the Defendants