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Patana v Toka Junior [2025] PGNC 126; N11248 (15 April 2025)

N11248

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO 48 OF 2025

BETWEEN
VEATA PATANA
First Plaintiff

AND
EDWARD COLLETT
Second Plaintiff

AND
RUSSELL SIMON WAVIK
Third Plaintiff

AND
MICHAEL VAGI GARI
Fourth Plaintiff

AND
ATO PATRICIA WILLIE
Fifth Plaintiff

AND
THOMAS D LANCHAN
Sixth Plaintiff

AND
BARRY NOU TAU
Seventh Plaintiff

AND
TED HENI MEA
Eighth Plaintiff

AND
RANU EBORE
Ninth Plaintiff

AND
AKE KAPI
Tenth Plaintiff

AND
DADI TOKA JUNIOR
First Defendant

AND
MOTU KOITA ASSEMBLY
Second Defendant

AND
ELECTORAL COMMISSION
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

WAIGANI: MAKAIL J
11, 15 APRIL 2025

PRACTICE & PROCEDURE – Application for interim injunction – Order sought to restrain members of Assembly – Expiration of term of office – Elections of – No elections held – Continuity in office of members and Chairman of Assembly – Right to vote and stand for elective public office – Serious question to be tried – Balance of convenience – Damages as an adequate remedy – No irreparable damage established – Constitution – Section 50 – Organic Law on Provincial and Local-level Government Elections – Section 271 – Motu Koita Assembly Act, 2007 – Sections 11(2)&(3), 14 & 23

Cases cited
Golobadana No. 35 Ltd v Bank of South Pacific Ltd (2002) N2309
American Cyanamid Co v Ethicon Limited (1975) UKHL 1; (1975) 1 All E.R. 504

Counsel
Mr A Manase with Mr I Opahi for plaintiffs
Mr H Kevau for first defendant
Mr N Vada for second defendant
Mr K Akeya for third defendant
Mr T Mileng for fourth defendant

INTERIM RULING

1. MAKAIL J: Pursuant to a notice of motion filed on 4^th April 2025, the plaintiffs seek the following orders:

“(1) Pursuant to Section 155(4) of the Constitution and Order 12, Rule 1 of the National Court Rules, the First Defendant who is the Chairman of the Second Defendant, together with all other Members of the Second Defendant and any Caretaker Motu Koita Assembly Committee created by letter of the Minister for Provincial and Local-level Government Affairs, Hon. Soroi Eoe dated 23 October 2023 be restrained from entering the premises of Motu Kota Assembly located at NCD City Hall, Port Moresby, including not disrupting the staff of the Second Defendant where the Second Defendant conducts or administers its business and/or public affairs, until further notice.

2. Pursuant to Section 155(4) of the Constitution and Order 12, Rule 1 of the National Court Rules, the First Defendant who is the Chairman of the Second Defendant, and all the Members of the Second Defendant and any Caretaker Motu Koita Assembly Committee created by letter of the Minister for Provincial and Local-level Government Affairs, Hon. Soroi Eoe dated 23 October 2023, individually or collectively, are restrained from exercising any powers and functions of the Second Defendant including conducting any meetings or gatherings to discuss issues pertaining to the Second Defendant including conducting any meetings or gatherings to discuss issues pertaining to the Second Defendant’s affairs including expending finance, until further orders.
   
3. Pursuant to Section 155(4) of the Constitution and Order 12, Rule 1 of the National Court Rules, all funds belonging to the Second Defendant kept in all or any Bank Accounts with all or any licensed Commercial Banks in PNG be frozen except for payment of salaries of administrative staff, until further notice.
   
4. Costs of and incidental to this application to the Plaintiffs.”
   

2. I have heard counsel for the parties and read their respective written submissions including the affidavits which they rely on for and against the motion and focussing on the relevant accounts of the parties, it is common ground that:

• pursuant to Section 10(1) of the Motu Koita Assembly Act, 2007 (“MKA Act”), the Motu Koita Assembly (“Assembly”) is established.
  
• pursuant to Section 11 of the MKA Act, the Assembly comprises of eighteen elected members and two non-elected members giving a total of twenty members.
  
• pursuant to Section 11(1)(a), (b) and (c) of the MKA Act, the Chairman and fourteen members of the Assembly are elected in an election by the Motu Koita people of the National Capital District (“NCD”) in an election conducted by the Electoral Commission (Third Defendant).
  
• pursuant to Section 11(3)(a) and (b) of the MKA Act, except for the non-elected members, the elected members including the Chairman of the Assembly hold office for a period of five years.
  
• the last general elections of the elected members including the Chairman of the Assembly were conducted on 18^th October 2018.
  
• the first defendant was elected the Chairman of the Assembly.
  
• the five-year term of office of the Chairman and members of the Assembly ended on or about 18^th October 2023.
  
• following that, no election was conducted by the Electoral Commission.
  
• in the interim, on 7^th October 2023 a resolution was passed by the Assembly appointing a Caretaker Committee headed by the first defendant to run the affairs of the Assembly until a general election is conducted.
  
• the Caretaker Committee was established after the Assembly obtained advice from the Minister for Provincial and Local-level Government Affairs (“Minister”) in a letter to the first defendant dated 30^th October 2023.
  
• the defendants gave several reasons for the delay in conducting the general elections including lack of funds, delay in updating of common roll and litigation in the District Court by intending candidates to update common roll due to lack of names on the common roll.
  
• on 14^th February 2025 the Minister issued a press release that the general elections for the Motu Koita Assembly will be held between 24^th April and 25^th July 2025 and that the writs for the general elections will be issued on 24^th April 2025 and returned on 25^th July 2025.
  
• since the end of five years on 18^th October 2023, no general election has been held for over one year and five months.
  

3. For an interim injunction to lie, it is necessary for the plaintiffs to establish that there is a serious question to be tried and secondly, that the balance of convenience favour them. Thirdly, it will not be granted if damages are an adequate remedy: American Cyanamid Co v Ethicon Limited (1975) UKHL 1; (1975) 1All E.R. 504 and Golobadana No. 35 Ltd v Bank of South Pacific Ltd (2002) N2309.

4. As to whether there is a serious question to be tried, there has been much debate in relation to the legality of the membership of the Assembly following the end of the five-year term of office on or about 18^th October 2023 and the plaintiffs’ strong emphasis on their rights to vote and stand for elective public office under Section 50 of the Constitution and the violation of these rights thereof.

5. Moreover, the plaintiffs’ strong argument that the Minister’s letter approving the extension of the term of office of the Chairman and members of the Assembly beyond five years lacked the legal foundation and is void because there is no expressed provision in the Organic Law on Provincial and Local-level Government Elections (“Organic Law”) and the MKA Act conferring such power and/or to establish a Caretaker Committee pending a new general election.

6. Also, that reliance on Section 271 of the Organic Law and Section 23 of the MKA Act is ill conceived because these provisions are not expressed to confer such power on the Minister.

7. Section 271 of the Organic Law states:

“The Minister responsible for Provincial and Local-level Government Affairs acting with, and in accordance with the advice of the Electoral Commission, shall issue his writ for a general election so as to accord with the provisions of Section 34 of the Organic Law on Provincial Governments and Local-level Governments.”

8. Then Section 23 of the MKA Act states:

“The Chairperson, or in his absence the Deputy Chairperson, shall:

(a) be politically responsible to the Assembly for the overall development and good government of the Motu Koita people; and

(b) be constitutionally responsible to the Minister responsible for provincial government and local-level government matters.”

9. Having read these provisions I accept the plaintiffs’ submissions that where the term of office of five years has expired, Section 271 of the Organic Law and Section 23 of the MKA Act do not confer power on the Minister to extend time to the elected members including the Chairman of the Assembly to hold office until the next election.

10. Similarly, I accept the plaintiffs’ submissions that there is no expressed provision in the Organic Law or the MKA Act conferring such power on the Minister and/or to establish a Caretaker Committee pending a new general election to be conducted.

11. However, I am not satisfied that there is a vacuum in the offices of the members and Chairman such that the Minister should be asked to intervene and extend the time of the elected members including the Chairman of the Assembly to hold office until the next general election is conducted.

12. As erroneous as it may appear, it is also arguable that regardless of the expiration of five years, by operation of Section 11(2) of the MKA Act, elected members including the Chairman of the Assembly hold office until the date fixed for the return of the writs for the next general elections held after their election.

13. Section 11(2) states:

“Members of the Assembly elected under Subsection 1(a), (b) and (c) hold office for a period commencing on and from the date of their election up to and including the date fixed for the return of the writs for the next general election held after their election.”

14. On a plain reading of this provision, it does not support the plaintiffs’ counter submission that the elected members including the Chairman of the Assembly cannot hold office beyond five years and that there has been a delay of over one year and five months since the five years expired on 18^th October 2023.

15. Moreover, it does not support the plaintiffs’ strong submissions that the delay in conducting a general election by the third defendant has violated the plaintiffs’ right to vote and stand for elective public office under Sections 50 and 57 of the Constitution.

16. Briefly, Section 50 of the Constitution provides for every citizen who is of full capacity and has reached voting age except for those sentenced to death or nine months or more imprisonment or holding dual citizenship, has the right and shall be given a reasonable opportunity to vote and to stand for elective public office.
17. However, contrary to what the plaintiffs claimed to be a violation of their rights under Section 50, there is a strong defence by the second defendant that no serious issue has been established in these proceedings because Section 11(2) of the MKA Act applies in a case where regardless of the expiration of five years, elected members including the Chairman of the Assembly hold office until the date fixed for the return of the writs for the next general elections held after their election.

18. This view is reinforced by the proposition that there must be continuity in the offices of the members and Chairman of the Assembly to avoid a vacuum and to protect the integrity of the due process until the next general elections are held.

19. Given that on 14^th February 2025 the Minister issued a press release that the election for the Motu Koita Assembly will be held between 24^th April and 25^th July 2025, and that the writs for the general elections will be issued on 24^th April 2025, there is a strong defence that, as a matter of law, the elected members including the first defendant hold office until the return of the writs on 25^th July 2025.

20. On the other hand, it is not necessary for the Minister to be asked to intervene and approve a Caretaker Committee headed by the first defendant to run the affairs of the Assembly until the next general elections are conducted and that the plaintiffs’ strong submissions that the letter by the Minister to the first defendant dated 30^th October 2023 has no legal foundation and is void, is of no consequence.

21. It suffices to point out that the various Assembly Committees established by the Assembly under Section 14 (Assembly Committees) of the MKA Act prior to the resolution of the Assembly of 7^th October 2023 should continue uninterrupted.

22. In addition, against the plaintiffs is the second defendant’s strong defence that there will be significant disruptions to the smooth operations of the Assembly because evidence coming in from the Manager of the Assembly Mr Mari Kila and his staff point to the potential disruption to the Assembly’s operations if an interim injunction were to lie.

23. One of the examples is the preparation of the Motu Koita Development Strategic Plan 2023-2028 by the second defendant which Mr Kila speaks passionately of in his affidavit in reply sworn and filed on 10^th April 2025, where the staff of the Assembly are responsible for its implementation with political oversight by the Assembly and an interim injunction will be disruptive to its implementation if the members including the first defendant are restrained from holding office.

24. Another is where the interim injunction will interfere with the duty of the Lands Officer Mr Daure Braisus Heni to, amongst others, work with respective members of the Assembly to negotiate customary land access for infrastructure development within NCD. For further details, parties may be referred to the affidavit in reply of Mr Heni sworn and filed on 10^th April 2025.

25. There are many other administrative functions of the Assembly outlined in the affidavits of Sereva Mea Arua, Hitolo Lohia and Mary Vagi all filed on 10^th April 2025 in relation to law and order and policing, provision of primary health services, staff human resources including operation of payroll and payment of staff salaries, etc.. which will be disrupted by the interim injunction if one were granted and need no further elaboration save to briefly mention them.

26. The accounts by the deponents of these affidavits directly refute the plaintiffs’ account that it is not a complex matter and one which the Court can easily tailor the terms of the interim injunction to provide for access to and allocation of funds including staff salaries by the administration of the Assembly pending the determination of the substantive proceedings and reinforces the second defendant’s submission that the plaintiffs have failed to discharge the onus bestowed on them that the balance of convenience favour the grant of an interim injunction.

27. Finally, while it is accepted that damages are not an adequate remedy and that there has been a long delay in holding general elections for the people of Motu Koita to elect their choice of members including the Chairman of the Assembly, it is not a clear-cut case of the defendants violating the plaintiffs’ right to vote and stand for elective public office under Section 50 of the Constitution, but one where no irreparable damage has been established.

28. At the end of the day, while the delay in holding an election is not a matter the Court will condone nor for the third defendant and fourth defendant through the Minister to encourage, there is a promise that awaits the plaintiffs to redeem; that an election will be held in a few weeks-time from 24^th April 2025 onwards and they will be recompensed for the lost opportunity to exercise their Section 50 constitutional rights at that time.

29. In the result, the plaintiffs have failed to discharge the onus bestowed upon them for an interim injunction to be granted.

30. The orders are:

1. The plaintiffs’ notice of motion filed on 4^th April 2025 seeking an interim injunction against the first and second defendants is dismissed.
   
2. The proceedings are adjourned to a date to be fixed for directions hearing.
   
3. The plaintiffs shall pay the costs of the motion, to be taxed, if not agreed.

________________________________________________________________
Lawyers for plaintiffs: Manase & Co Lawyers
Lawyers for first defendant: Kevau Legal
Lawyers for second defendant: Nova Lawyers
Lawyers for third defendant: Ponepai Lawyers
Lawyers for fourth defendant: Acting Solicitor General