SC1067

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 86 OF 2010

BETWEEN:

HON.HAVILA KAPO, MP
Member for Gulf Provincial Seat
Appellant

AND:

HON. MARK MAIPAKAI, MP
First Respondent

HON.TITUS P BOMBOM, MP
Second Respondent

HON. CHARLES MAIU MPA, President Ihu RLLG
Third Respondent

HON. KEITH FEREAPO MPA, President Kerema Urban LLG
Fourth Respondent

HON. IKA OAVERA MPA, President Central Kerema LLG
Fifth Respondent

HON. ROBERT PAIVA MPA, President East Kerema RLLG
Sixth Respondent

HON. HENRY AMO MPA, President Taure/Lakekamu RLLG
Seventh Respondent

HON. RICHARD PANAMA MPA, President Kotidanga RLLG
Eighth Respondent

HON. WILSON BAIDU MPA, President West Kikori RLLG
Ninth Respondent

HON. NUN SUMBA MPA, President East Kikori LLG
Tenth Respondent

HON. Jonah Kairi MPA, President Baimuru RLLG
Eleventh Respondent

HON. JOHN ALALA MPA, President Kaintiba RLLG
Twelfth Respondent

SIMON MALARA
Thirteenth Respondent

Waigani: Injia, CJ
2010: 5th August

SUPREME COURT – Practice and Procedure - Application for stay and interim relief – Cases of private law and public law – Principles – Supreme Court Act, s 5(1)(b) & s19.

CONSTITUTIONAL LAW- Public law - Interim relief – Dismissal of Governor and election of new Governor by Provincial Assembly – Reinstatement of Governor of Province – Reinstatement of members of Provincial Assembly following decision of the Supreme Court on Constitutional Reference - Principles- Constitution, s 19 (2); Organic Law on Provincial Governments and Local Level Governments, s 20 & s 21; Provincial Administration Act 1997, s 12 (a).

Cases cited:

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2000] PNGLR 279
Issac Lupari v Sir Michael Somare (2008) SC2008
Norah Mairi v Alkan Tololo [1976] PNGL 59 
PNG Air Traffic Controllers Association Incorporated v Civil Aviation Authority (2008) SC950
R v Secretary for Transport, ex'p. Factortame Ltd (No.2) [1991] 1 A.C. 603, 672-67
Sir Pato Kakaraya v The National Parliament (2004) SC756 
Special Reference No. 1 of 2009 Reference Pursuant to s 19 of the Constitution, Reference by the Ombudsman Commission of Papua New Guinea, Re Sections 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10 )Law 2006 (2010) SC1058
Wapua v Lakopa (2009) SC1048.

Counsel:

S Soi, for the Appellant
No appearance, for the First Respondent
G Epor, for the Second – Thirteenth Respondents

5th August, 2010

1. INJIA, CJ: The appellant applies for stay of proceedings and interim orders issued by the National Court on 16th July 2010, pursuant to s 19 of the Supreme Court Act (the Act). If stay is granted, then he seeks interim orders under s 5 (1) (b) of the Act. The application is contested by the second to the thirteenth respondents (the respondents). The application is made pending determination of an appeal filed against the interim orders. 

2. Both parties filed affidavits and their counsel made submissions which I have considered.

Circumstances of the case

3. The appellant is the Member of the National Parliament (MP) representing the Gulf Provincial electorate. He was elected in the general elections in 2007. By virtue of s 17 of the Organic Law on Provincial Governments and Local-Level Governments (OLPLLG), he is the Governor of the Gulf Province (GP) and chairman of the Provincial Executive. By virtue of s 14 of OLPLLG, he is also the Chairman of the Gulf Provincial legislature or Provincial Assembly (GPA).

4. The first and second respondents are MPs representing the two open electorates in GP (Kikori Open electorate and Kerema open electorate respectively). By virtue of s 10 (3) (a) of the OLPLLG, they are also members of GPA. 

5. The thirteenth respondent is the Clerk of GPA but the appellant disputes his appointment and says Mr Maravilla is the duly appointed Clerk.

6. With regard to the third to twelfth respondents (Council Presidents), between 2006 and 4th June 2010, pursuant to Sections 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10 )Law 2006, the GPA comprised of MPs and nominated members only. As a result of this amendment law, the Presidents of Rural Local-Level Governments, Urban Local -Level Governments and authorities were removed from the GPA. 

7. On 4th June 2010, in SC Reference No. 1 of 2009 Reference Pursuant to s 19 of the Constitution, Reference by the Ombudsman Commission of Papua New Guinea, Re Sections 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10 )Law 2006 (2010) SC 1058, the Supreme Court invalidated ss 1 and 2 of Amendment No. 10. The effect of this decision was that the Council Presidents were restored to office as members of the Provincial Assemblies in each of the nineteen provinces throughout Papua New Guinea. Since the decision, the national government and provincial government authorities have been giving effect to the decision of the Supreme Court.

8. The formal swearing-in of the Council Presidents as members of GPA was delayed because the provincial government authorities sought from the national government clarifications on the process to be followed in reinstating the council Presidents. A meeting of the GPA held on 17th June 2010 was adjourned to 28th June 2010 for this reason. On 28th June 2010, the respondents requested an additional meeting to be held on 30th June 2010. The respondents attended the meeting on 30th June 2010, appointed the fourth respondent to chair the meeting of GPA and swore - in the third to the twelfth Council Presidents. The meeting was then adjourned to 30th June for a vote on the motion. On 30th June, the motion was debated and voted upon. The appellant was voted out of office and the second respondent was elected as the new Governor of the province. 

9. It appears on 28th June, and 7th July, the appellant conducted meetings of the GPA without the presence of the respondents.

10. The tussle for control of GPG appears to have been deepening when the appellant instituted proceedings in the National Court at Waigani.

11. In National Court proceedings OS No. 354 of 2010 filed on 19th July 2010, the appellant sought declaratory orders, inter alia, that the meetings of the GPA convened by the respondents and resolutions reached were done in breach of relevant provisions of the OLPLLG and Provincial Governments Administration Act. He moved a motion seeking interim orders, inter alia, to restore him to office, prevent the second respondent from assuming his new office and the respondents from convening further meetings of GPA. The National Court dismissed the application and instead granted other interim orders against the appellant which are the subject of this appeal. The orders are as follows: 

(1) All reliefs sought in the notice of motion filed by the plaintiff on 2 July 2010 are refused.

(2)	For the avoidance of doubt, the first to the 12th defendants shall be regarded as members of the Gulf Provincial Assembly and the second defendant shall be regarded as Governor of Gulf Province until further order of the National Court pending the determination of the amended originating summons.

12. In those proceedings, the main points in contention are the following: 

(1)	Validity request made by the respondents for an "additional meeting" on 30th June 2010, pursuant to s 12 (a) of the Provincial Governments Administration Act 1997.

(2)	Validity of the meeting of GPA convened on 30th June 2010 and resolutions made in that meeting.

(3)	Validity of the swearing - in of Council Presidents in meeting of GPA conducted on 30th June 2010.

(4)	Validity of the notice of vote of no confidence in the appellant given on 28th June 2010, debated and voted upon by GPA on 30th June 2010, pursuant to s 20 of OLPLLG. 

(5)	Election of the second respondent as the new governor of GP, pursuant s 21 of OLPLLG.

13. There was evidence produced in the National Court to show that a request for an additional meeting of the GPA was made by the respondents to the appellant to convene a special meeting of GPA under s 12 (3) (a) of the Provincial Governments Administration Act 1997. Section 12 provides:

12.	Meetings of a Provincial Assembly.

(1)	A Provincial Assembly shall meet within 15 days of the day fixed for the return of the writs following a general election to Local-level Governments.

(2)	A Provincial Assembly shall meet at least once in each period of three months.

(3)	A Provincial Assembly shall have additional meetings—

(a)	where not less than one third of the total number of members of the Provincial Assembly make written request to the Chairman; or

(b)	where the Chairman gives notification; or

(c)	in accordance with the provisions of an Act of the Parliament or of a provincial law or of the Standing Orders.

(4)	Unless the Minister gives written authority to the contrary a meeting of a Provincial Assembly shall not be held at the same time as a meeting of the Parliament.

14. A copy of the request signed by more than one third of the members of GPA ( including Council Presidents) in compliance with s 12 (3)(a) was produced in evidence.

15. There is evidence which suggests that a notice of motion of no confidence in the appellant was given to GPA constituted by the respondents under s 20 of OLPLLG. The motion was voted upon in favor of removing the appellant as the Governor. Section 20 provides:

20.	Dismissal of Provincial Governor and Deputy Provincial Governor.

(1)	Subject to this section, if the Provincial Governor or Deputy Provincial Governor—

(a)	deliberately and persistently frustrates or fails to comply with the resolutions of the Provincial Assembly; or

(b)	deliberately and persistently disobeys applicable laws, including the Constitution, an Organic Law (including this Organic Law) or any national legislation applying in the province; or

(c)	is negligent in exercising his powers or performing his functions, duties and responsibilities; or

(d)	does an act that is or is likely to bring into disrepute or call into question the integrity of his office,

the Provincial Assembly may, by a two-thirds absolute majority vote, dismiss the Provincial Governor or Deputy Provincial Governor.

(2)	The dismissal of the Provincial Governor or the Deputy Provincial Governor shall be by motion—

(a)	which shall be expressed to be a motion to dismiss the Provincial Governor or the Deputy Provincial Governor, as the case may be; and

(b)	of which not less than one week's notice signed by the number of members of the Provincial Assembly, being not less than one-quarter of the total number of seats in the Assembly, has been given in accordance with the procedures of the Assembly. 

16. The motion was passed and the appellant was removed as the Governor. The second respondent was then elected the new Governor under s 21 of OLPLLG. Section 21 states: 

21.	Election of the Provincial Governor in the event of vacancy.

(1)	Subject to Subsection (3), if the Provincial Governor vacates his office in accordance with Section 19(1), or is dismissed from office in accordance with Section 20, the Provincial Assembly shall, from amongst the members of the Assembly who are Members of the Parliament, elect the Provincial Governor.

(2)	Subject to Subsection (3), if the Provincial Governor elected under Subsection (1) vacates his office in accordance with Section 19(2), or is dismissed from office in accordance with Section 20, the Assembly shall elect another Member of the Parliament to be the Provincial Governor.

(3)	If—

(a)	a vacancy exists in the office the Provincial Governor; and

(b)	all of the Members of the Parliament—

(i)	are appointed to any of the offices referred to in Section 19(1)(b); or

(ii)	are otherwise disqualified by law,

the Assembly shall, from amongst the members referred to in Section 10(3)(b) and (c), elect the Provincial Governor.

17. Neither party produced before the National Court or this Court the relevant minutes, records or the hansard to confirm these events, in particular, a copy of the notice of Motion given under s 20 of the OLPLLG and minutes of the meeting of GPA electing the new Governor were not produced. Therefore it cannot be established, prima facie, if the notice of motion to remove the appellant complied with the mandatory requirements of s 20 of OLPLLG. The dispute as to which of the two persons purporting to exercise the functions of the Clerk of GPA seems to have compounded the difficulty in obtaining a true record of those proceedings or documents. 

Law

18. This Court's jurisdiction to grant orders sought under s 19 and s 5 (1) (b) of the Act is not in issue. The relief under s 19 and s 5 (1) (b) are not the same. An order for stay stops the continuation of proceedings in the National Court pending determination of the appeal whereas an interim relief grants fresh orders which are necessary to "prevent prejudice to the claims of the parties" pending determination of the appeal. The principles on stay and interim relief are not necessarily the same although a few of the considerations may be common to both. It may be a mistake to slavishly adopt and apply the principles on stay to an application under s 5 (1)(b) and O 3 r 2 (b) as it appears to be the case in PNG Air Traffic Controllers Association Incorporated v Civil Aviation Authority (2008) SC 950 and Issac Lupari v Sir Michael Somare (2008) SC 2008.

19. The grant of stay is discretionary. The principles on stay are laid down in a number of cases including the often cited case of Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2000] PNGLR 279. In Gary Mc Hardy it was said that the grant of stay is discretionary and it is exercised on proper principles and on proper grounds. The Court must start from the basic premise that the judgment creditor is entitled to enjoy the benefit of the judgment. There are ten (10) other considerations which are enumerated in that case, as follows: 

•	Whether leave to appeal is required and whether it has been obtained.

•	Whether there has been delay in making the application.

•	The nature of the judgment sought to be stayed.

•	 Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure. 

•	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal.

•	Possible hardship, inconvenience or prejudice to either party. 

•	The financial ability of the applicant. 

•	Balance of convenience.

•	Whether damages would be sufficient remedy. 

•	The overall interest of justice. 

20. In exercising its discretion, the Court must consider all relevant and appropriate circumstances in determining whether it is just and reasonable that the order ought to be stayed. It is not intended that the discretion should be exercised on all or selected considerations and factors enumerated in Gary McHardy; rather the Court is required to consider the totality of those relevant factors and circumstances, in order to dispense substantive justice in the circumstances of the case before it. The circumstances of a particular case may warrant greater or less or even no weight to a particular relevant factor(s) and then again, that is a matter of discretion: Wapua v Lakopa (2009) SC 1048. 

21. The principles on grant of interim relief under s 5 (1) (b) of the Act and O 3 r 2 (b) of the Supreme Court Rules 1987 are analogous to the principles of the common law on interlocutory orders: Norah Mairi v Alkan Tololo [1976] PNGL 59, Sir Pato Kakaraya v The National Parliament (2004) SC756. Those principles were summarized under three broad criteria in Sir Pato Kakaraya, as follows: 

(a)	 that the court must be satisfied that there is a serious question to be tried.

(b)	Whether the balance of convenience lies in favour of granting the interim order.

(c)	That this is a discretionary power and the court may have regard to considerations such as preservation of the status quo until the matter is tried. 

22. The principles on grant of interim relief in the National Court are summarized by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853. Those are that there is a serious issue to be tried, damages would not be an adequate remedy and the balance of convenience favours the grant of stay. The trial judge applied those principles to the circumstances of this case. The trial judge found that there were serious issues to be tried with regard to the removal of the appellant and election of the second respondent, that damages was not an appropriate remedy and that the balance of convenience favored the removal of the appellant and the second respondent be recognized as the new governor to administer the province in the period. 

23. The principles set out in Chief Collector of Taxes are those applying to cases founded on private law. In cases founded on public law, those principles would have to be appropriately modified to reflect proper consideration being given to the interests of the general public to whom the duties are owed. In public law cases, of paramount importance is the seriousness of the issues to be tried and the balance of convenience; damages is a less important consideration: see De Smith, Wolf and Jowell, Judicial Review of Administrative Action (5th ed) Sweet & Maxwell, London (1995) at 708 – 712, 17-008- 17-021 at 17-011; Richard Gordon Q.C. Judicial Review: Law & Procedure (2nd ed.) Sweet & Maxwell, London (1996), at 154, 8-012; R v Secretary for Transport, ex'p. Factortame Ltd (No.2) [1991] 1 A.C. 603, 672-673. The public interest may be considered in the context of the balance of convenience or as an additional consideration. In cases founded on public law which involve issues of removal and/or appointment of public officials, the public interest may be a special consideration that is to be taken into account separate from the balance of convenience. 

24. In Yama Group of Companies Ltd & 3 others v PNG Power Ltd (2005) N2831, the principles on private law were modified to apply to cases involving statutory authorities. Those principles were further modified in cases involving removal or appointment of pubic officials in Thaddeus Kambanei v NEC & Ors (2006) N 3064 and subsequently applied in Paul Asakusa v Andrew Kumbakor (2006) N3257. In Thaddeus Kambanei, it was held that the public interests in the good administration of the public office is a relevant and important consideration. This consideration could fall to be considered under the balance of convenience but I would think it is a distinct consideration that requires proper consideration in every case where interim injunctive relief is sought to restore a public official who has been removed on disciplinary grounds following procedures prescribed by law. 

25. In Thaddeus Kambanei, the Court said: 

"In respect to an application for a stay or interim injunctive orders in a public employment situation, the primary consideration which I would add as principle No. 10 to the nine principles set out above is this:

"10.	As a general principle, in an application for interim injunction or interim mandatory injunction under Order 16 Rule 3(8), in a case of judicial review of a decision concerning suspension or removal of a public official on disciplinary grounds, a stay or an interim injunction or interim mandatory injunction should not be readily granted except in very exceptional cases where the public interest of the public employer in maintaining continuity of good administration of the office would be best served by the applicant's restoration to office pending the hearing and determination of the substantive application for judicial review. The public interest in the good administration of public office is the paramount consideration. The private rights of the employee such as in protecting the applicant's integrity and reputation is a relevant consideration but it is not an important consideration." 

26. The principles enunciated in Thaddeus Kambanei in the context of judicial review proceedings under Order 16 of the National Court Rules are in my view, equally applicable to proceedings commenced by ordinary Originating Summons or Writ of Summons seeking declaratory relief in a case concerning removal of a public official on disciplinary grounds.
 
27. The public interest in the good administration of the public office would require the Court to give proper consideration to relevant matters which, amongst others, include the following:

(1)	 The importance of the public office;

(2)	 The importance of the public functions of the office to be properly and efficiently performed by persons duly qualified and experienced to hold that public office.

(3)	The professional and ethical standing, integrity, ability and experience of the person aspiring to hold the position and to effectively and conveniently discharge the duties of the office during the period of litigation.

(4)	Special functions to be performed during the period.

(5)	Stability and continuity of proper functioning of the public office during the period. 

(6)	Maintenance of the status quo.

(7)	Public perception and public confidence in the good administration of the office generally.

28. The question of damages and the private interests of the person aspiring to be appointed to the position though relevant, are not important considerations. 

29. In my view, in an application for stay under s 19 and interim relief under s 5 (1) (b) of the Supreme Court Act and O 3 r 2 (b) of the Supreme Court Rules 1987, the criteria to be met are the same in respect of the balance of convenience, maintenance of the status quo and the public interest in the good administration of the public office in question. In respect of the strength of the case on appeal, an arguable case must be demonstrated in an application for stay whereas in an application for interim relief, serious issues must be demonstrated. Other considerations set out in Gary McHardy have very little or no application to an application under s 5 (1) (b) and O 3 r 2 (b) in respect of the removal of a public official on disciplinary grounds.

Exercise of discretion

30. Applying the above principles, I consider the important considerations in the circumstances of this case to be the nature of the interim orders issued, the arguable nature of the appeal, the balance of convenience, the maintenance of the status quo and the public interest in the good administration of the office of the Governor.

31. I agree with the trial Judge that the Council Presidents listed as the third to the twelfth respondents are entitled to become and remain members of the GPA. Their swearing in as members of the GPA is a mere formality. That should have been the first official business of the GPA after the notice of the Supreme Court's decision in the case referred to was brought to the appellant's attention. Any attempt by him to frustrate that from taking place may be an act of defiance which this Court or any Court of equity and good conscience should not tolerate. The trial Judge considered this point and came to the same conclusion. As did the trial judge, I do not find an arguable case exists in relation to their right to become and remain members of the GPA until their appointment as Council Presidents of their respective Rural or Urban LLGs is determined according to law. The public interest in the political stability and continuity of proper functioning of the GPA required those Council members to formalize their reinstatement to office as members of GPA immediately after the Supreme Court decision was brought to the appellant's attention. It appears premium time was unnecessarily wasted by the appellant in seeking clarifications from Waigani on the Supreme Court decision on the special reference. Their position appears to have been resolved in the meeting of the GPA held on 30th June 2010. Their assumption of public office following a Supreme Court in the manner done in this case should be recognized and given effect to, irrespective of the course and outcome of the proceedings in the Court below and before this Court on the issue of removal of the appellant and election of the second respondent. In that regard, s 19 (2) of the Constitution provides:

"(2)	An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court."

32. In my opinion, it is not in the public interest to have the GPA rendered dysfunctional by internal politicking over the Governor's position, for any period of time, as at this point in time there are no doubt debates and decisions on important matters to be made in the GPA. The Gulf Province Government must be fully functional with the legislative and executive arms of the province intact and at a time when important decisions remain to be made on economic projects in the province. For instance the Gulf Province is one of three provinces that will accommodate the LNG gas pipeline for the LNG project and the public interests demand a fully functional provincial government that can make those important decisions for the benefit of the Gulf people and the country as a whole.

33. The removal of the appellant as the governor of GP and the election of the second respondent as the new Governor is an issue that needs to be fully ventilated between the parties, litigated and determined by the National Court. I agree with the trial Judge that there are serious issues to be tried as to the manner in which the notice of motion was given and voted on under s 20 of OLPLLG and the motion to elect the 2nd respondent as the new Governor was given and moved under s 21 of OLPLLG. Proof of the proper minutes or hansard will no doubt settle some of those questions. I agree with the trial judge that the appellant may not have an arguable case on a request issued under s 12 (3) (a) of the Provincial Governments Administration Act because it contained the names and signatures of more than 1/3 of the members of GPA, the Council Presidents included, and the notice was served on him. However serious issues are raised as to how the meeting was convened and conducted by the respondents, resolutions reached and records kept on matters concerning motion of no confidence and the election of a new Governor.

34. In relation to the balance of convenience the appellant is the incumbent Governor of the province and the management of the office has been in his hands since July 2007 when he was elected as the MP representing the province. He took office at a time when the GPA was constituted by MPs of the province and nominated members after the amendment to s 10 of OLPLLG in 2006. He has been running the province since 1997. In the affidavits that were filed in the National Court, there is no suggestion of gross mismanagement or malpractices committed by him or his government that would stand in the way of his continuing in office. There is a greater risk to good administration of the province when a new person who has no proven track record of management of the office of the Governor is allowed to take over the administration in the short period during the currency of court proceedings. As the evidence produced by the appellant shows, the provincial administration can be quite unsettling, could easily turn chaotic and could result in irreparable damage which the appellant's administration could find itself difficult to repair if it wins the appeal and the action in the National Court. 

35. The only thing standing against the appellant is that he appears to have come to this Court seeking an equitable relief with unclean hands. He appears to have orchestrated the GPA in delaying the swearing-in of Council Presidents to the GPA after learning of the Supreme Court's decision in the Special Reference. However, this is neutralized by what appears to be a deliberate pursuit by the respondents to pursue the Governor's post immediately after the Supreme Court decision, instead of being patient and attending to the formalities of their membership in the GPA. They ended up purportedly removing an incumbent Governor of several years of experience and replacing him with someone who had no experience in running the province as a Governor. 

36. I am satisfied that the balance of convenience and the maintenance of the status quo favors the appellant. 

37. As for the public interest in good administration, the position of the Governor of the province is an important office. It is the top political and executive post in the province. The position is established by Constitutional Law and by the same law, the position of the governor is vested in the MP representing the provincial seat. He is also the chairman of the Provincial Executive. That person is directly elected by the people to represent the people of the province at the provincial level and by virtue of that office, he holds the office of the Governor. The same cannot be said of any other MP or MPA aspiring to be the Governor. That other person's assumption of office must be done in strict compliance with the mandatory requirements of s 20 and s 21 of the OLPLLG. The removal of the incumbent Governor for reasons and under the process specified in 20 of the OLPLLG and placing the administration of the province on a new person under s 21 of the OLPLLG in the interim period pending the determination of court proceedings, is so exceptional a course to be taken; and unless the Court is satisfied, having regard to all the circumstances, that the challenge to the process of his removal from office is prima facie so hopeless or so lacking in merit; an incumbent Governor should not be easily removed from office. To do otherwise is a recipe for political chaos and instability that may compound the problems in the provincial administration and prejudicial to good administration of the province. It can easily lead to erosion of public confidence in the effectiveness and integrity of the office of the governor and the provincial administration. 

38. I am not satisfied that the second respondent possesses qualifications and experience superior to that of the appellant to run the province in the short period in an effective and efficient manner and that the people of Gulf, the recipients of his services, will be better off in the short interim period, through his services. The evidence placed before the trial Judge did not disclose any serious misconduct or mismanagement of the Gulf Provincial Government by the appellant that would work against his continued occupation of the public office to which he was entitled by Constitutional Law during the period of litigation. 

39. The trial judge did not consider these matters. The cases I have referred to were also not considered by the trial judge. 

40. For purposes of the stay application, I am satisfied that there is an arguable case on appeal in relation to the National Court's recognition of the removal of the appellant and placing the administration of the province in a new Governor, without giving proper consideration to the matters I have alluded to under the balance of convenience, maintenance of the status quo and public interest in good administration. I am also satisfied that the balance of convenience, maintenance of the status quo, and the public interest in the good administration of the office of the Governor of the Province all favor the grant of stay of the part of the decision of the trial judge relating to interim relief in favor of the respondents. 

41. For purposes of the application for interim relief, I am satisfied that the nature of the interim orders issued against the lawful occupant of the office of the Governor on the face of serious issues raised concerning the meetings of the Gulf Provincial Assembly on 30th June 2010 raises serious issues to be tried in the National Court. I am also satisfied that the arguable nature of the case on appeal, the balance of convenience, the maintenance of the status quo and the public interest in the good administration of the office of the Governor of the Province, all favor the grant of interim relief in favor of the appellant. 

Orders

42. The Court orders that pending determination of the appeal:- 

(1)	Further proceedings in the National Court in OS No. 354 of 2010 is stayed.

(2)	The part of paragraph (2) of the National Court order of 16th July 2010 which reads "the second defendant shall be regarded as the Governor of Gulf Province until further order of the National Court pending the determination of the amended originating summons", is stayed. Consequently, the appellant shall remain the Governor of the Gulf Province effective from the date of this decision.

(3)	 Pursuant to s 5 (1) (b) of the Supreme Court Act, the part of paragraph (2) of the National Court order of 16th July 2010 which reads " for the avoidance of doubt, the first to 12th defendants shall be regarded as members of the Gulf Provincial Assembly", is affirmed. The Gulf Provincial Assembly shall continue to meet and perform its duties in accordance with the OLPLLG and the Provincial Government Administration Act 1997; except that the removal and appointment of the Governor of the province which is the subject of these proceedings, or any other such motions under s 20 and s 21 of the OLPLLG, or any further request for "additional meetings" under s 12 (3) (a) of the Provincial Administration Act 1997; shall not be entertained by the Gulf Provincial Assembly. 

(4)	Costs of the Motion shall be costs in the appeal.

_____________________________________
Soi & Associates: Lawyer for the Appellant
Epor Lawyers: Lawyer for the Second to Thirteenth Respondents