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Manoka v Ain [2020] PGSC 74; SC1989 (31 August 2020)

SC1989

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 28 OF 2018

BETWEEN
BILLY MANOKA
Appellant

AND
PAULUS AIN
First Respondent

INDEPENDENT CONSUMER & COMPETITION COMMISSION APPOINTMENTS COMMITTEE
Comprising the Prime Minister Hon. Peter O’Neil in his capacity as the Chairman, The Leader of the Opposition, Hon. Don Polye, MP (member), Minister for Treasury, Hon. Patrick Pruaitch, MP (member) and Governor of the Central Bank, Loi Bakani (member)
Second Respondent

AND
HON. ANO PALA, MP in his capacity as the ATTORNEY GENERAL and the nominal Defendant on behalf of the HEAD OF STATE and GOVERNOR-GENERAL
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Salika CJ, Toliken and Berrigan, JJ
2020: 25^th August and 31^st August

DECISION ON APPEAL

COMPUTATION OF TIME - section 15(3) of the Independent Consumer and Competition Commission Act – s 11 of the Interpretation Act, 1975.

Cases Cited

References cited
Sections 8 and 9 of the Independent Consumer and Competition Commission Act, 2002
Section 11 of the Interpretation Act, 1975

Counsel

R. Raka, for the Appellant
D. Bidar, for the First Respondent
C. Kup-Ogut, for the Second Respondent
R. Mugiguai, for the Third and Fourth Respondent

DECISION ON APPEAL

31 August, 2020

1. BY THE COURT: This is an appeal from a decision of Makail J in the National Court on 18 October 2018 in OS (JR) No. 519 of 2015.
   
2. The facts are straight forward. The appellant was appointed by the Governor-General as the Commissioner of the Independent Consumer and Competition Commission (ICCC) on 6 May 2010 for a period of 5 years with effect from 5 May 2010 pursuant to ss. 8 and 9 of the Independent Consumer and Competition Commission Act, 2002 (the ICCC Act). The five year term expired on 4 May 2015.
   
3. Prior to the expiration of his term, the appellant wrote to the Governor-General on 28 April 2015, and again on 24 July 2015, expressing his interest in re-appointment pursuant to s. 15(3) of the ICCC Act.
   
4. On 5 August 2015 the First Respondent was appointed by the Second Respondent as the Commissioner of the ICCC for a period of 5 years with effect from 4 August 2015.
   
5. By way of notice of motion the appellant sought orders quashing the appointment of the First Respondent and declarations that he was deemed to have been reappointed as Commissioner of the ICCC for a further term of 5 years pursuant to s. 15(3) of the ICCC Act, and that the decision of the Acting Governor-General and Head of State to appoint the First Respondent was null and void, and ultra vires.
   
6. The matter was heard before his Honour Makail J on 17 March 2017. On 18 October 2018 the learned trial judge dismissed the application for judicial review on a number of bases, namely that: the First Respondent’s appointment took place within the 90 days provided for in s. 15(3)(b) of the ICCC Act; the eligibility of a candidate is a prerequisite for re-appointment under the ICCC Act; automatic reappointment of a Commissioner is not contemplated by s. 15(3) of the Act and the issue of eligibility for re-appointment pursuant to s. 15(3)(c)(ii) rests with the discretion of the Appointments Committee under s. 9 of the ICCC Act; the Appellant was not eligible for automatic re-appointment in view of the findings of misconduct in office against him by a Leadership Tribunal for failure to file his annual statements for 2008, 2009 and 2010; and finally, the Regulatory Statutory Authorities (Appointment to Certain Offices) Act, 2004 does not apply to the ICCC and the First Respondent’s appointment was legal.
   
7. The appellant’s notice of appeal contained five grounds of appeal, such that the learned trial judge:
   
   • (1) erred in law and in fact when he ruled that the decision by the Second Respondents to appoint the First Respondent was made within the mandatory 90 days pursuant to section 15(3)(b) of the ICCC Act;
     
   • (2) erred in law and in fact when he accepted the Respondents’ submissions in finding that the 90-day period which ran from 6 May 2015, expired on 4 August 2015, when it fact in expired on 3 August 2015;
     
   • (3) erred when he failed to take into account that the ICCC has adopted the process in relation to the appointment of CEO’s and other heads of Regulatory Statutory Authorities as set out in the Regulatory Statutory Authorities (Appointment to Certain Offices) Act, 2004 as a guide to appoint the Commissioner and Associate Commissioners for ICCC;
     
   • (4) erred when he failed to take into account that there was no advertisement by the Department of Treasury in both daily newspapers of a vacancy arising in the position of a Commissioner of the ICCC thereby inviting applicants;
     
   • (5) erred when he took into consideration irrelevant matters such as the argument advanced by the Respondents on the ineligibility of the Applicant.
     
8. Grounds (3) to (5) were abandoned at hearing.
   
9. Essentially, the only contention which the appellant maintains on this appeal is that the learned trial judge erred in finding that the First Respondent was appointed within the 90-day period provided under s. 15(3) of the ICCC Act. He seeks a declaration that he was deemed to be the Commissioner of the ICCC by operation of law, alternatively, that he be compensated for loss of employment as the Commissioner of the ICCC. In lieu of damages he seeks payment of the position’s entitlements for the periods 4 May 2010 to 3 May 2015 and 5 May 2015 to 4 May 2020.
   
10. Section 15 (Vacancy) of the ICCC Act provides as follows (emphasis added):

“(1) The office of Commissioner or Associate Commissioner becomes vacant if the person holding that office –

(a) dies; or

(b) resigns in accordance with Section 14; or

(c) attains the age of 70 years; or

(d) is not re-appointed at the end of a term of office; or

(e) is removed from office in accordance with Section 16; or

(f) is not qualified to remain a member of the Commission by virtue of Section 12; or

(g) is declared by the Court to have contravened Section 13.

(2) A vacancy in the office of Commissioner or Associate Commissioner shall be filled as soon as possible end, in any event, within 90 days of the vacancy arising.

(3) If –

(a) a vacancy in the office of Commissioner or Associate Commissioner arises as a result of the expiry of the term of office of a member of the Commission; and

(b) the vacancy is not filled within 90 days of the vacancy arising; and

(c) the member of the Commission whose term of office expired –

(i) has advised the Head of State in writing that he is willing to be re-appointed; and

(ii) is eligible for re-appointment,

then, with effect from the day next following the 90 days after the vacancy arose, the member of the Commission shall be deemed to have been re-appointed to the office of Commissioner or Associate Commissioner, as the case may be, for a further term of five years.”

11. Materially, s 11 (computation of time) of the Interpretation Act, 1975 provides (emphasis ours):

“(1) In computing time for the purposes of a statutory provision, a period of time from–

(a) a certain day; or

(b) the happening of an event; or

(c) the doing of an act or thing,

shall be deemed to be exclusive of the certain day or of the day on which the event happens or the act or thing is done.”

12. It is common ground amongst the parties that by virtue of the operation of s. 15(1) of the ICCC Act and s. 11 of the Interpretation Act, the Office of the Commissioner became “vacant” on the 5^th May 2015, and that the learned trial judge was correct to find that the 90 days for the purposes of s. 15(3)(b) began to run from 6 May 2015.
    
13. The learned trial judge found that the First Respondent was appointed “within 90 days”, when he was appointed on the 4^th August 2015. It is clear to us as a simple mathematical exercise, and was ultimately conceded by the Respondents on the appeal, that the 90 day period concluded on the 3^rd August 2015 and that to this extent His Honour erred.
    
14. That is really beside the point, however. As is clear from the above, in dismissing the claim in the lower court, the learned trial judge found, inter alia, that the Appellant was not eligible for reappointment in any event, and that the First Respondent’s appointment was lawful.
    
15. Neither of these matters were challenged by the Appellant, the relevant grounds being abandoned at hearing.
    
16. Moreover, there is no utility in this appeal. The Appellant filed his appeal on 27 November 2018 and has taken almost 21 months to prosecute it, a matter which is itself unreasonable in the circumstances.
    
17. In the interim the First Respondent’s appointment, which the appellant claims he is entitled to, lapsed on 3 August 2020, and the 90 day period within which the ICCC Appointments Committee may make an entirely new appointment is currently on foot.
    
18. Nothing was to be gained by this appeal. The appellant’s claim for damages and entitlements, not raised in the appropriate manner or at all in the lower court, were entirely misconceived before this Court.
    
19. Finally, whilst it must be assumed that the ICCC Act reflects the legislative will of Parliament, we agree with the learned trial judge that it contains certain anomalies, not least of which include the provision for an incumbent Commissioner to write directly to the Head of State to seek re-appointment, and indeed the role of the Head of State in that re-appointment process. Whilst those are not matters requiring determination by us, they are matters that those responsible for legislative drafting may wish to consider having regard to the power and functions of the Governor-General under the Constitution.
    
20. We make the following orders:
    
    1. The appeal is dismissed.
    2. The appellant pay the respondents’ costs of and incidental to the appeal, to be taxed if not agreed.

_______________________________________________________________
Henaos: Lawyer for the Appellant
Daniel Bidar: Lawyer for the First Respondent
Kup & Co: Lawyer for the Second Respondent
Solicitor General: Lawyer for the Third and Fourth Respondent