Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Karap v Marape [2023] PGNC 404; N10556 (26 October 2023)

N10556

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 80 OF 2023(IECMS)

JOSEPH KARAP ACTING PROVINCIAL ADMINISTRATOR JIWAKA PROVINCIAL ADMINISTRATION
Plaintiff

V

HONOURABLE JAMES MARAPE MP PRIME MINISTER AND CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL
First Defendant

And
TAIES SANSAN SECRETARY DEPARTMENT OF PERSONAL MANAGEMENT
Second Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 22^nd September, 26^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Application for Leave for Judicial Review Order 16 Rule 3 NCR– Acting Provincial Administrator Jiwaka Provincial Administration Revocation Of – Appointment For Three Months Lapsed – Locus Standi – Arguable Cause – Exhaustion of Internal Process – Delay – Materials Insufficient – Balance Not Discharged – Leave Refused – Cost follow event.

Cases Cited:

Sampson v National Executive Council [2019] PGSC 102; SC1880
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122

Counsel:

M. Kuma, for Plaintiff
K. Kipongi, for Defendants

RULING

26^th October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 18^th July 2023 filed of the 19^th July 2023 seeking:
   
   • (i) Leave to apply for Judicial Review of the decision of the National Executive Council made on the 06^th June 2023 to revoke the acting appointment of the Plaintiff, (Acting Provincial Administrator) and appoint Mr. Rick Kogen as the new acting Provincial Administrator for Jiwaka Provincial Administration.
     
   • (ii) Costs in the Cause
     
   • (iii) Such further and other orders as this Honourable Court deems appropriate.
     
2. He relies in support of the application on his affidavit filed of the 19^th July 2023, 10^th August 2023 and the 15^th August 2023. Relevantly it is undisputed that the National Executive Council in its decision of the 15^th February 2022 appointed him as acting Provincial Administrator for Jiwaka Provincial Administration for a period of three (3) months until a substantive appointment was made. This commenced on the 15^th February 2022 expiring on the 15^th May 2022 or until a substantive appointment was made, whichever occurs first, annexure “A & B” affidavit dated the 19^th July 2023. By decision number 164/2023 in special meeting number 15/2023 subject, his appointment was revoked, and insertion made of the acting appointment of Mr. Rick Kogen again for three months until a substantive appointment was made. A statutory Business paper No. 56/2023 was noted including the resolution of the Jiwaka Provincial Executive Council and the Recommendation of the Public Services Commission.
   
3. Which led to the decision to revoke the appointment of the Plaintiff and to insert Rick Kogen as new acting Provincial Administrator. Direction made therefrom to the Secretary Department of Personal Management to re advertise the position of Provincial Administrator pending. And the Legislative Counsel to prepare the Instruments accordingly.
   
4. This is process and procedure of law to come with the decision to set effectively make a new acting appointment after ceasing and lapse of the incumbent the plaintiff. There is nothing apparent or overt or identifiable that the Law has been breached to arrive at that decision. These are official records emanating from the highest administrative decision-making head of the Country, the National Executive Counsel challenged by an individual the Plaintiff, who has personal interests at stake. That is not the law. Locus standie emanates from breach of the process of law which effect the plaintiff. Here that is not the case prima facie. Judicial review is oriented to protect the process of law. Decision that has come out of a due process of law must be left as they are. This is the case here. There is nothing apparent or identifiable that sways otherwise than, the process of law was exerted to come with the decision of a new acting appointment and the lapse of an old appointment, the plaintiff.
   
5. The plaintiff evidence shows that he was not reappointed after his acting appointment lapsed in the three months period expiring on 15^th May 2022. The new appointment was made 26^th June 2023. The G519 of Tuesday 27^th June 2023 showed the revocation of the acting appointment of the Plaintiff as Acting Provincial Administrator and appointment of Rick Kogen as Acting Provincial Administrator Jiwaka. The appointment of the plaintiff was for three months of the 15^th February 2022 to 15^th May 2022, but there is no evidence that the Plaintiff was reappointed for further periods of three months until the 26^th June 2023. If he was appointed it seems that appointment now ended on the 26^th June 2023 with the appointment of the new acting appointment of Rick Kogen.
   
6. This is a process of law that has not come to close, and he is now no longer in that seat by that process. He is not affected so that there is an abuse of the process of the law. He does not have Locus standie by his facts and circumstances. The case of Sampson v National Executive Council [2019] PGSC 102; SC1880 (26 November 2019) is distinguished from the present because there was formal paperwork on record to the appointment of the appellant. The paperwork formally on the record does not speak that the plaintiff here was reappointed. He was revoked and there is nothing apparent or identifiable to waive that fact. It remains that in law he had lived his time as acting administrator which was by law at an end. It could not be revived. He therefore had no Locus standie in his favour. That is what is apparent against the cause of the applicant.
   
7. Which leads that there is no 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 do not warrant as being arguable. He simply was at the close of the road by the due process of law. It is not arguable nor is it erroneous if the law was compiled to come with the decision. It is prima facie that he does not have arguable cause to warrant a full hearing on Judicial review.
   
8. It is not relevant to consider delay because the fact of the matter is that the process of the law has been exhausted and it remains as it is. Which will be the cause in the argument for internal process and procedure. There was no error apparent or identifiable in the first instance and it remains that way. The aggregate is the pleadings do not warrant that this matter be revisited in review: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008).
   
9. The process of law has been accorded to arrive where the plaintiff is, he is no longer the acting administrator of the Province of Jiwaka: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. His application for leave is without merit and is refused with costs.
   
10. The formal orders of the Court are:
    
    • (i) leave is refused for Judicial review.
      
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Kuma Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for First Defendant