N10548

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 7 OF 2022 (IECMS)

JEFFERY MARI
Plaintiff

V

HON JAMES MARAPE MP AS PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Defendant

AND
NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND
HON PILA NININGI MP AS MINISTER FOR INTER GOVERNMENT RELATIONS
Third Defendant

AND
JOSEPH WARUS
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2023: 21st September 19th & 20th October

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Declaration – Certiorari – Order 16 Rule 5 NCR – National Executive Council Decision – Abolishment Of Local Level Government Kandep District –  Establishment of Two New Local Governments Mariant & Lai Rural Local Level Government – Section 28 Organic Law on Provincial and Local Level Governments – Ultra Vires – No Prior Consent From NEC & Enga Provincial Assembly –Mandatory Requirement Failure Section 28 OLPLLG – Section 27(1)(3)(4)(5)(6)(7) OLPLLG – No Recommendation By Enga Provincial Assembly for Establishment of Local Level Government – Decision of NEC Breach of Section 27 (3) OLPLLG – Proclamation by Governor General Null & Void of No Effect – No Proper Planning & Consultation on New LLG Establishment – Political Motives – Improper Purpose – Bad Faith – Errors of Law – Review Accorded As Pleaded – cost follow event.

Cases Cited:
Polye v Ipatas [2019] PGNC 273; N8035 
Mari v Marape [2022] PGSC 108; SC2311
Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348 
Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 

Counsel:
A. Manase, for Plaintiff 
K. Kipongi, for Defendants

DECISION
 20th October 2023

1.	MIVIRI, J: This is the ruling on the Plaintiffs substantive Notice of Motion dated 11th November 2022 filed of the 16th November 2022, pursuant to Order 16 Rule 5 of the National Court Rules, “the Rules,” seeking: 

(a)	A declaration that the decision (No. 412/2021) of the National Executive Council (NEC) made on 16th December 2021 in its special Meeting (No.34/2021) and Proclamations made by the Acting Governor General, Job Pomat based on the NEC Decision No. 412/2021 which was published in the National Gazette (No. G904) on 31st December 2021 are null and void and of no effect.

(b)	An Order in the nature of Certiorari to bring up to the National Court and to quash the Decision (No. 412/2021) of the National Executive Council (NEC) made on 16th December 2021 in its special Meeting (No. 34/2021) and Proclamation made by the Acting Governor General, Job Pomat based on the NEC Decision No. 412/2021 which were published in the National Gazette (No. G904) on 31st December 2021.

(c)	And Order for costs of the proceedings on a Solicitor Client basis

(d)	Time is abridged to date of settlement by the Registrar which shall take place forthwith.

(e)	Any other orders in the discretion of the Court.

2.	Jeffery Mari the plaintiff seeks Judicial review against the decision of the National Executive Council (NEC) made on the 16th December 2021 in abolishing a local level Government and establishing two new local level Governments for Kandep District in Enga Province. Leave was granted by the Supreme Court for Judicial review on the 08th November 2022 after it heard the appeal. Which appeal was because Leave had been initially refused by this Court.

3.	 In pursuit the Plaintiff relies on the following affidavits:

(i)	Affidavits verifying facts of Jeffery Mari filed of the 20th January 2022;
(ii)	Affidavit in support of Jeffery Mari filed also of the 20th January 2022;
(iii)	Affidavit in support of David Yaski filed of the 20th January 2022;
He also relies on the documents instituting the proceedings:
(iv)	Undertaking as to damages filed as of the 20th January 2022;
(v)	Notice to the Secretary for Justice also filed of the 20th January 2022;
(vi)	The Supreme Court Order granting leave;
(vii)	Also, the statement pursuant Order 16 Rule 3 (2) (a) of the Rules.
 
4.	From this evidence the plaintiff is a ward Councillor of Pura 2 Ward of Kandep Rural Local Level Government, Enga Province. And is also the Council President of the Kandep Rural Local Level Government making him a member of the Enga Provincial Assembly and therefore a member of the Enga Provincial Executive Council. He is also the Chairman of the Commerce, Culture and Tourism Division of the Enga Provincial Government.

5.	Kandep District has two local Level Governments, Kandep Rural Local Level Government and Wage Rural Local Level Government. And there are 36 council wards comprising 36 councillors from who is the Plaintiff president of the Kandep Rural Local Level Government. Election of the Plaintiff and the 35 other councillors occurred in the 2019 Local Level Government Election. The plaintiff and the other councillors have three more years since being elected in 2019 completing their five (5) year term as President and Councillors of that Local Level Government in 2024. When Election is expected again.

6.	The National Executive Council (NEC) in its decision (No.412/2021) made a Special Meeting (No. 34/2021) conducted on or about 16th December 2021 approved the:	

(a)	Reinstatement of some purported 22 wards of Kandep Rural Local Level Government in Enga Province but the names of those purported 22 wards are not mentioned in the decision of the NEC; and

(b)	Splitting of Kandep Rural Local Level Government into two (2) Local level Governments, namely Mariant Rural Local Level Government and Lai Rural Local Level Government.

7.	The Acting Governor General Job Pomat acting in accordance with the advice of the National Executive Council with recommendations from the Minister for Inter-Governmental on the 31st December 2021 abolished Kandep Rural Local Level Government. And established two, (2) new Local Level Governments, namely Mariant Rural Local Level Government and Lai Rural Local Level Government. This decision was published in the National Gazette G904 on the 31st December 2021. And this decision did not emanate with the consent of the Enga Provincial Assembly giving effect to section 28 of the Organic Law on Provincial Governments and Local Level Governments. And it remained that Kandep Rural Local Level Government’s abolishment was made without the prior consent of the Enga Provincial Assembly. And further there was no recommendation also from the Enga Provincial Assembly to the Minister for Inter Government Relations for the establishment of Mariant Rural Local Level Government and Lai Rural Level Government required under section 27(3) of the Organic Law on Provincial Governments and Local Level Government. Both Rural Local Level Governments were established without recommendations of the Enga Provincial Assembly.

8.	The result of the NEC decision No. 412/2021 of the 16th December 2021 and the decisions of the Acting Governor General Job Pomat published in the National Gazette G904 on 31st December 2021 had the effect that Kandep Rural Local Level Government ceased to exit with its 36 wards within. And as a result, the 36 council wards of Kandep Rural Local Level Government became disqualified depriving them of their Salaries, Allowances with other benefits entailing from those respective offices. In the case of the Plaintiff, he was displaced as councillor of Pura Ward of Kandep Rural Local Level Government. And the same followed to the office that he held as Council President of the Kandep Local Level Government. Including his membership of the Enga Provincial Assembly and as member of the Enga Provincial Executive Council and Chairman of the Commerce, Culture and Tourism Division of the Enga Provincial Government. He was deprived of the salaries, allowances and benefits he derived from these respective offices he held on account of that Local Level Government now non existent as a result of that decision and its publication set out above. And fundamentally there is no Local Level Government for the People immediate of Kandep directly from that decision and publication thereof.

9.	Which is now the subject of this proceedings pleading that Declaration be made against that decision and its proclamation by the Acting Governor General Job Pomat and publication as being null and void and of no effect. Further that certiorari lies to bring that decision before this Court and to quash it. Particular evidence that gives credence to this assertion is the affidavit in support of Jeffery Mari, David Yaski. 

10.	David Yaski is clerk of the Provincial Assembly. He keeps all the records of all the meetings of the Enga Provincial Assembly and the Provincial Executive Council. And has been working there for 17 years since 2005 now 17 years. He was promoted to Director Assembly Services Division in March 2021 and currently holds that position Acting director of Assembly Services. As clerk of the Assembly, he is not aware of any submissions or recommendations made by the Kandep Rural Local Level Government with the District Authority of Enga Provincial Assembly for the abolishment of the Kandep Rural Local Level Government and establishment of the Mariant Rural Local Level Government and Lai Rural Local Level Governments. And there is no submission made in this regard to the Minister for Inter Government Relations for both abolishment and establishment of both.

11.	The same evidence is materially deposed to by Jeffery Mari originally from Momodai Village, Pura 2 Ward of Kandep Rural Local Level Government Enga Province who is Ward Councillor emanating there and is the head, President of Kandep Rural Local Level Government Enga Province. By virtue of that fact is also member of the Enga Provincial Assembly and Member of the Enga Provincial Executive Council. Also, the Chairman of Commerce, Culture and Tourism Division of the Enga Provincial Government.

12.	Materially Kandep District has two Local Level Governments, Kandep itself and Wage. There are 36 Council Wards within Kandep comprising 36 councillors of which he is the president of. And he has been a Ward Councillor of Pura 2 Ward for 31 years, first elected in 1991. In the present term he has three (3) more years to serve before election are called as the duration is five (5) years. Which would be service as President and Councillor of the Kandep Rural Local Level Government.

13.	On or about 16th December 2021 the National Executive Council conducted a special meeting No. 34/2021 and made annexure “A” a decision No. 412/2021 approving and amongst others reinstating some purported 22 wards of Kandep Rural Local Level Government in the Province. Further Splitting Kandep Rural Local Level Government into two (2) Local Level Governments of Mariant and Lai. Based on that decision a proclamation was issued by the Acting Governor General Job Pomat to that effect, abolishment of the Kandep Rural Local Level Government Enga Province. And the subsequent establishment of two (2) new Local Level Governments of Mariant and Lai. That was published in the National Gazette G904 of the 31st December 2021, annexure “B”.

14.	The names of the purported 22 wards of the Kandep Rural Local Level Government are not mentioned in the decision 412 of 2021 by the National Executive Council in that decision of the 16th December 2021 following into the Gazettal made. And it is my knowledge that Kandep Rural Local Level Government under my presidency did not make any submissions or recommendation nor the Provincial Assembly comprising to the Minster for Inter Government Relations for abolishment of the Kandep Rural Local Level Government and establishment of the Mariant and Lai Rural Local Level Governments.

15.	The effect of that decision is that Kandep Rural Local Level Government do not exist anymore including the 36 wards of it. I am with the other 35 councillors representing displaced and deprived of our salaries allowances and other benefits we got from as representatives in those respective offices. Personally, I am displaced as Pura 2 Ward Kandep Councillor, also as President of the Kandep Rural Local Level Government and member of the Provincial Assembly and the Provincial Executive Council. Including my Chairmanship of Commerce, Culture and Tourism Division in the Enga Provincial Government. My salaries entitlements and other benefits as have been lost. Fundamentally there is no local Level Government for the People of Kandep now.

16.	At the outset the plaintiff has argued that the subject decision of the National Executive Council was ultra-Vires. It was a gross error of law committed in that decision. And it was improper and with mala fide than bona fide. There was therefore bad faith. It was ultra vires because there is no law setting to provide for the establishment of, and abolishment reinstatement of Wards in a local level Government here. And the subject decisions here including the publication did not stem from any legal basis and in both cases were illegal ultra vires. It is also not clear as to the names of the wards that were established as these are not disclosed in the decision as well as its publication. Therefore, the effect is that that decision is invalid of no effect and void.

17.	Because under section 28 of the Organic Law there are two preconditions that must be satisfied in the case of abolishment of a ward:

(a)	Consent of the National Executive Council and
(b)	Consent of the Provincial Assembly.

18.	To give section 28 is “Abolition of Local Level Government. Subject to the Constitution, a local Level Government Shall not be abolished or in any way amalgamated and its area shall not be altered, without prior consent of the National Executive Council and of the Provincial Assembly.”

19.	  This is very clear language to the two requirements set out above from this section. For the actions of the National Executive Council to be lawful it must produce and have relied on a prior consent sited before it made that decision coupled with that of the Enga Provincial Assembly to that effect. The evidence on record of the proceedings do not show that this was the case leading to both decisions set out above. Abolishment of a ward does not take place without the consent of the National Executive Council. Secondly the consent of the Provincial Assembly, here the Enga Provincial Assembly. The material filed by the plaintiff applicant supported by that of witness David Yaski do not bring this out. There is no material filed by the State to evidence these to justify legalize the decisions both. And ultra vires is not remote given these facts. And this is the law set out in Polye v Ipatas [2019] PGNC 273; N8035 (4 October 2019). Similarly reading schedule 1.10 (3) “Where a Constitutional law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.”

20.	Given it follows that the National Executive Council must have the authority that there was prior consent coupled with the Enga Provincial Assembly’s to reinstate the unnamed 22 wards. That would be illegal unlawful and ultra vires considering. Which would extend to include the publication in the gazette by the Acting Governor General Job Pomat set out above. Section 28 does not describe as to who is the authority to abolish a local level Government. 

21.	It means the people of Kandep through their elected representatives, the 36 councillors have now been deprived by this decision to participate in governance of their district and province. “23. On the plain reading of section 28 in the context of abolition of an LLG, it means that a LLG shall not be abolished unless the Provincial Assembly and NEC give their consent or agree.  24.We uphold Mr Aku’s submissions. It is arguable that the process under section 28 (supra) was breached by the NEC as there is no evidence that the Enga Provincial Assembly was consulted and consented to the abolition of Kandep Rural LLG and establishment of the two new LLGs. It is a legal issue which will turn on the evidence that will be presented at trial;” Mari v Marape [2022] PGSC 108; SC2311 (8 November 2022).

22.	The evidence relied on set out above do not enhance that the applicant has been rebutted such that there is consent by the NEC and the Enga Provincial Assembly. It means that the actions by NEC did not follow law nor was it in compliance of law. There is error apparent on the face of the record. In this regard there is no recommendation to satisfy the dictate of section 27 Establishment of Local Level Government:

(1) For the purposes of Section 26(3), (4) and (5), and subject to this section and to this Organic Law, the Head of State, acting on the advice of the National Executive Council, may, by proclamation, establish a Local-level Government in and for the area described in the proclamation.
(1A) In principle, an area in respect of which a Local-level Government will apply will be contained within one open electorate, but an area may extend beyond one or more electoral boundaries where the Head of State, acting on the advice of the National Executive Council, given after considering a recommendation by the Minister, is of the opinion that such an extension is–
(a) in the interests of administrative convenience due to remoteness or geographic location; and
(b) to the benefit of the people in the area.
(2) A proclamation under Subsection (1) shall only be made after the procedure as specified in this section has been complied with.
(3) Where a Provincial Assembly is of the opinion that a Local-level Government should be established in and for an area in the province, it shall so recommend to the Minister responsible for local-level government matters.
(4) A recommendation under Subsection (3) shall contain particulars of–
(a) the area in respect of which the Local-level Government will apply; and
(b) where the area extends beyond one or more open electorate boundaries, the reasons for the recommendation of the area; and
(c) the form of Local-level Government recommended; and
(d) such other particulars as are considered relevant.
(5) Where the Minister–
(a) accepts the recommendations made under Subsection (3), he shall bring the recommendations to the National Executive Council as soon as is practicable for consideration as to whether or not a proclamation be made under Subsection (1); or
(b) does not accept the recommendations made under Subsection (3) or wishes further information, he shall, as soon as practicable, consult with the Provincial Executive Council.
(6) The Minister shall, within 90 days of his consulting with the Provincial Executive Council under Subsection (5)(b), whether or not he accepts the recommendations made under Subsection (3), bring the recommendations to the National Executive Council for consideration as to whether or not a proclamation be made under Subsection (1).
(7) If the Minister fails to bring the recommendations to the National Executive Council for consideration within the 90 days required under Subsection (6), the National Executive Council shall proceed with the recommendations as if they had been accepted by the Minister.
23.	Section 27 (3) set out above has not eventuated. There is no recommendation by the Enga Provincial Assembly to be established which recommendation has gone from the Minister into the hands of the National Executive Council to for its endorsement to the Head of State who will issue a proclamation relating to its establishment. 

24.	That is not the case each of the here in respect of the establishment pleaded set out above. They have not come into being by the process of law. There is no evidence to the contrary. It is discharged that process has been abused and not complied with. The law has not been heeded and therefore the decision pursuant set out above establishing 22 new wards of Kandep Rural Local Level Government in Enga Province but the names of those purported 22 wards are not mentioned in the decision of the NEC do not derive into existence by the process of law. They do not exist in law. And by that fact are declared null and void of no legal effect. And that will befall similar Splitting of Kandep Rural Local Level Government into two (2) Local level Governments, namely Mariant Rural Local Level Government and Lai Rural Local Level Government. They also are by this reason declared null and void of no legal effect.

25.	And it will follow similar that the decision No. 412/2021 of the 16th December 2021 and the Proclamations made by the Acting Governor General Job Pomat to establish the Mariant LLG and the Lai Rural LLG and published in the National Gazette G904 of the 31st December 2021 were made in breach of the law section 27 (3) of the Organic Law on Provincial and Local Level Governments. It follows that the decision of the National Executive Council and the Proclamation by the Governor General are null and void of no legal effect. This is also the fate of the establishment of the two new LLG of Mariant and Lai. The decisions emanating establishing do not follow Law and they are void ab initio. 

26.	This is a decision that has affected the lives of the people of Kandep that they had no say as to how it came about. For their elected representatives locally from the District and the Province for their governance. To be able to feed the process by consultation and recommendations from the Provincial Assembly to the National Level to the highest decision-making entity of the State, the National Executive Council and then, eventually to the Head of State to issue a proclamation. Lives of all citizens in that area Kandep is affected including Enga Province as a whole. The law must protect and must give opportunity for Audi alteram Partum for there to be natural Justice to stand the case. Here it does not meet and so will fall: Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348. 

27.	Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The aggregate of all I set out above is that the process in law has not been followed to arrive at the decisions particulars set out above. Consequently, all decisions the subject of this proceedings and the pleadings set out above are declared null and void of no legal effect forthwith.

28.	The formal orders of the court are:

(1)	The Substantive Notice of Motion of the applicant for Judicial Review is upheld and granted in the terms as pleaded.

(2)	Declaration is granted in that the decision (No. 412/2021) of the National Executive Council (NEC) made on 16th December 2021 in its special Meeting (No.34/2021) and Proclamations made by the Acting Governor General, Job Pomat based on the NEC Decision No. 412/2021 which was published in the National Gazette (No. G904) on 31st December 2021 are null and void and of no effect forthwith.

(3)	Certiorari lies to bring up to this Court the Decision (No. 412/2021) of the National Executive Council (NEC) made on 16th December 2021 in its special Meeting (No. 34/2021) and Proclamation made by the Acting Governor General, Job Pomat based on the NEC Decision No. 412/2021 which were published in the National Gazette (No. G904) on 31st December 2021, which decisions are hereby quashed forthwith.

(4)	Costs will follow the event to be taxed if not agreed.

(5)	Time is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.
__________________________________________________________________
Manase & Co Lawyers: Lawyers for the Plaintiff/Applicant		
Office of the Solicitor General: Lawyers for the Defendants