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Mangulik v Torovi [2023] PGNC 402; N10554 (25 October 2023)

N10554

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 113 OF 2023(IECMS)

STANLEY MANGULIK IN HIS OFFICIAL CAPACITY AS THE DISTRICT ADMINISTRATOR OF MAPRIK AND CEO OF MAPRIK DISTRICT DEVELOPMENT AUTHORITY
Plaintiff

V

SAMSON TOROVI IN HIS OFFICIAL CAPACITY AS THE PROVINCIAL ADMINISTRATOR FOR EAST SEPIK PROVINCE
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 18^th & 25^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Application for Leave for Judicial Review Order 16 Rule 3 NCR– Acting District Administrator Maprik District – Audi Alteram Partum Section 59 Constitution – Locus Standi – Arguable Cause – Section 73 (1) Organic Law on Provincial & Local Level Government – Establishment of Office of District Administrator – Section 61 Public Service Management Act 1995 Appointment Procedures of District Administrator – Section 22 District Development Authority Act 2014 CEO is District Administrator – Exhaustion of Internal Process – Delay – Materials Sufficient – Balance Discharged – Leave Granted – Cost follow event.

Cases Cited:
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348

Counsel:
J. Asupa, for Plaintiff
P. Yom, for Defendants

RULING

25^th October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 08^th October 2023 filed of the 10^th October 2023 seeking:
   
   • (i) To review the decision of the first Defendant made on 26^th September 2023 and published through Circular Instruction No. 27/2023 dated 27^th September 2023, to unlawfully revoke the appointment of the Plaintiff as the District Administrator of Maprik District on unproven allegations of gross abuse of public funds and non-performance of administrative duties, and simultaneously appointing Godfrey Raushem as caretaker administrator to replace the plaintiff.
     
   • (ii) To review the decision of the First Defendant made on 26^th September 2023 and published through Circular Instruction No. 27/2023 dated 27^th September 2023, to unlawfully revoke the appointment of the Plaintiff as the District Administrator of Maprik District on unproven allegations of gross abuse of public funds and non-performance of administrative duties, and simultaneously appointing Godfrey Raushem as caretaker administrator to replace the plaintiff, without according the plaintiff the opportunity to be heard with respect to the allegations.
     
   • (iii) To review the decision of the First Defendant made on 26^th September 2023 and published through Circular Instruction No. 27/2023 dated 27^th September 2023, to unlawfully revoke the appointment of the Plaintiff as the District Administrator of Maprik District on unproven allegations of gross abuse of public funds and non-performance of administrative duties, and simultaneously appointing Godfrey Raushem as “caretaker administrator” to replace the plaintiff, when the First Defendant had no powers to appoint a “caretaker administrator” as such position is not provided by the relevant Laws.
     
   • (iv) Costs in the Cause
     
   • (v) Time be abridged for entry of these orders to the time of settlement which shall take place forthwith.
     
   • (vi) Such other orders in the discretion of the Court.
     
2. The State was in attendance but was not ready and it did not have a submission on record to assist. Counsel made verbal submission giving the excuse that file was with another officer but was not allocated in good time to prepare. In any case the material relied on was such that injustice was apparent prima facie despite the submission of the State. Which had no material in defence. There was nothing to be considered against in the plea of the plaintiff.
   
3. The originating summons is supported by the affidavit of the plaintiff applicant filed of the 10^th October 2023 sets that he is the acting Chief Executive officer appointed on the 18^th November 2022 by the Maprik District Development Authority (MDDA) by way of Policy Submission No.163/22 at DDA Board Meeting at Crowne Hotel in Port Moresby. The appointment was not formalized by the First Defendant for over five (5) months until February 2023 when a letter was signed formalizing it as Acting District Administrator.
   
4. This appointment was unlawfully revoked by the First Defendant on 27^th September 2023 by a circular 27/2023, annexure “A” on allegations of gross abuse of public funds and non-performance of administrative duties, simultaneously appointing Godfrey Raushem as caretaker administrator to replace the plaintiff. Plaintiff was referred therein by the first defendant as District Administrator when he was only acting District Administrator. And the allegations giving rise were not put to the plaintiff in that circular to give opportunity to defend and rebut. There was no notice of revocation of the appointment made to that position by the First Defendant. Which was on WhatsApp group for the Das and LLG Managers in East Sepik Province drawing me to that fact of my revocation.
   
5. It is my knowledge that the Secretary Provincial & Local Level Government Affairs and the Secretary of the Department of Personal Management were not consulted before my revocation. This is required under section 8 of the Department of personal management General Order 1. And there is no such position of caretaker administrator within the Organic Law on Provincial and Local Level Government, Public Services Management Act 1995, District Development Authority Act 2014, and the Department of Personal Management General Orders.
   
6. The plaintiff has locus standie he is directly affected by the decision that was made by the First Defendant particulars set out above in his affidavit relied on. He is no longer in the seat that he was appointed to without being heard as to the allegations that were raised against him leading to his revocation. There is in administrative law, no adherence to Audi Alteram Partum which is substantial cause for leave for Judicial review: Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348.
   
7. There is arguable cause demonstrated by the facts set out in his affidavit and the supporting statement under order 16 Rule 3 (2)(a) of the NCR. The questions raised in the originating summons confirmed by this statement and verified by the affidavit verifying are basis in my view that the plaintiff has arguable cause for this matter to proceed to a full hearing in the Judicial review. There is a position of District Administrator as pleaded in the originating summons terms set out above. The removal would be in accordance. Here is allegation that it has not followed sequenced to his demise. There is therefore prima facie an arguable case to proceed to a full hearing of the matter. This ground is discharged his favour.
   
8. There is no delay in the filing of the application. It was filed on the 10^th October 2023. Initially the subject decision was made on the 27^th September 2023. There is no delay in its filing and this ground is discharged in favour of the applicant plaintiff.
   
9. There is no internal avenue except to come as he has done. The laws set out above do not show this out in their respective ambits so the application is properly before the court. He has also discharged this requirement. And the pleadings with all supporting documents by the rules are in order settled all seen in Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). He is challenging the process of law conducted here allegedly improperly. There is cause within Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 for his originating summons to be granted in the terms he has pleaded for leave for Judicial review of the subject decisions he has set out therein above. I grant leave for Judicial review on the originating summons pleaded.
   
10. The formal orders of the Court are:
    
    • (i) The Plaintiffs originating summons for leave is granted for Judicial review.
      
    • (ii) He will file and serve the substantive Notice of motion by or before Monday 06^th November 2023.
      
    • (iii) The matter will be called up at Directions on Monday 06^th November 2023 at 9.30 for Directions.
      
    • (iv) Costs will follow the event forthwith.
      

Orders Accordingly.
__________________________________________________________________
Croton Legal Services: Lawyers for the Plaintiff/Applicant
Office of the Solicitor General : Lawyers for First Defendants