SC2784

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO 27 OF 2025

HON. BENJAMIN MUL, MP
Appellant

V
HON. SOROI MAREPO EOE in his capacity as the Minister for the Provincial and Local-level Government Affairs
First Respondent

AND:
SIR BOB DADAE in his capacity as the Governor General
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI: WAWUN-KUVI J, ANDELMAN J, KHAN J
3, 13 OCTOBER 2025

SUPREME COURT- JUDICIAL REVIEW – Whether the application for judicial review was made against the correct party – Whether the correct decision maker was named – Head of State made proclamations acting on the advice of the National Executive Council – Proclamation was published in Gazette – Whether publication of Gazette is an act of decision making process – Whether Head of State was the correct party to the proceedings – under section 3 of Claims by and Against the State Act – Whether Attorney General should be named as nominal defendant.
The Head of State, acting on advice from the National Executive Council pursuant to s 27(1) of the Organic Law on Provincial Governments and Local-level Governments, made two proclamations abolishing and creating new local-level governments and wards for Jiwaka Province. The first respondent, the Minister for Provincial and Local-level Government Affairs, later published the notification of the proclamations in the National Gazette.
The appellant filed Judicial Review proceedings claiming that the decision resulting in the abolition and creation of the local-level governments and wards was made by the Minister on publication of the notification in the National Gazette.
The primary judge dismissed the proceedings on the basis that the appellant sought review of the wrong decision and named the wrong decision maker.
Held:
1. 	Under s 56 of the Local-level Governments Administration Act 1997, the Minister’s responsibility is to publish in the Local-level Government Gazette the proclamation made under s 27(1) of the Organic Law on Provincial Governments and Local-level Governments. The Minister’s decision to publish was not the subject of the review in the court below.
2. 	Under s 27(1) of the Organic Law on Provincial Governments and Local-level Governments, the power to establish by proclamation a local-level government is vested in the Head of State acting on advice from the National Executive Council and not the Minister. Consequently, the Minister was not a proper party to the proceedings.
3.	Following Sammy Lodge Ltd v Sipison [2024] PGSC 86; SC 2618 and Wari v Ramoi and Dibela [1986] PNGLR 112, the proper party to the proceedings should have been the Independent State of Papua New Guinea pursuant to the Constitution, s 247(2), and not the Head of State.

Cases cited
Keitinga Ltd. v Ane [2024] PGSC 44; SC2577
Sammy Lodge Ltd v Sipison [2024] PGSC 86; SC2618
Gelu v Sheehan [2013] PGNC 235; N5498
Wari v Ramoi and Dibela [1986] PNGLR 112

Counsel
D Kints and L Lolo, for the appellants
G Akia, for the respondents

1.	BY THE COURT: The appellant appeals against the decision of the National Court in proceedings OS(JR) 56 of 2025. The primary judge, dismissed with costs, the appellant’s application for judicial review against the decision of the first respondent in the creation of new local-level governments and council wards in the Anglimp-South Waghi Electorate, Jiwaka Province.
BACKGROUND 
2.	 Until recently Jiwaka Province had three (3) electorates as follows:

1.	Anglimp-South Waghi
2.	Jimi; and
3.	North Waghi.

3.	On 30 January 2024, the Jiwaka Provincial Assembly (JPA) purportedly unanimously resolved in their meeting No. 2/2024 to endorse the creation of two (2) new Local-level Governments (LLG).  The resolution in evidence is on the letterhead of the JPA under the Office of the Chairman.  It was signed by the Chairman, Hon. Simon Kaiwi, MP, under the common seal of the JPA, and the Provincial Assembly Clerk, Du Kunagil, under the seal of the Jiwaka Provincial Government Assembly Services.

4.	It was not disputed that the appellant, a member of the JPA, was absent. Among other things, he says that he was not given notice of the meeting and thus the opportunity to participate, discuss and vote on the agenda of the creation of LLGs and Council Wards or was unaware why they were to be created.

5.	On 6 December 2024, the National Executive Council (NEC) in a special meeting No. 17/2024:

1.	noted the Statutory Business Paper No. 117/2024 NEC;
2.	approved to abolish the current Anglimp Rural Local-Level Government in the Anglimp/South Waghi Open Electorate in Jiwaka Province and in its stead establish two new rural LLGs;
3.	approved to establish a new Anglimp Rural Local-level Government by retaining 18 existing wards and creating 10 new wards to form the new Rural Local-level Government with 28 Council Wards in total;
4.	approved to establish a new Kuna-Komon Rural Local-level Government by retaining 19 existing wards from the former Anglimp Rural LLG and creating 4 new wards to form the new Rural Local-level Government within 23 Council Wards in total.

6.	On 16 December 2024, acting on the advice of the NEC and pursuant to section 27(1) of the Organic Law on Provincial Governments and Local-level Governments (Organic Law), the second respondent signed two proclamations: one to create the Kuna Komon LLG with its 23 respective wards, and another to create the Kambia LLG with its 9 respective wards.

7.	On 18 March 2025, pursuant to s 56(2)(a) of the Local-level Government Administration Act (LLGA Act), the first respondent published in the National Gazette No G237 the Notification of Proclamation of the decisions of the Head of State.

8.	The appellant applied and was granted leave for judicial review against the first respondent’s decision made on 18 March 2025 and published in Gazette No. G 237 on 11 June 2025.

THE LAW ON APPEAL
9.	The factors to consider when determining an appeal are settled. In the most recent case of Keitinga Ltd. v Ane (2024) PGSC 44; SC2577, the Court stated:

“In an appeal the Supreme Court is guided by the following principles when deciding whether the appeal should be upheld. The appeal court should be slow to interfere with the exercise of a discretionary power by the lower court unless it is satisfied that the court below:
1)acted upon a wrong principle; or
2)gave weight to extraneous or irrelevant matters; or
3)failed to take into account relevant considerations; or
4)made a mistake as to the facts,
and even where there is no identifiable error, the appellate court can infer such an error if the resulting judgement is "unreasonable or plainly unjust.”

GROUNDS OF APPEAL  
10.	The Notice of Appeal has four grounds of appeal which are as follows:

1.	The trial judge erred in law and facts in her decision at [27] – [29] of the written judgement that the proclamation made by the Governor-General pursuant to s 27(1) of the Organic Law is the decision that should be challenged and not the publication by the First Respondent.
2.	The trial judge erred in law and fact at [31] – [35] of the written judgement when she was swayed by the title, held that the publication by the first respondent on 18 March 2025 in Gazette No. G.237 did not make the decision but a publication or formal announcement or formal record of a decision already been made.
3.	The trial judge erred in law and misapprehended the interpretation and application of s 3 of the Claims by and Against the State Act (CBASA) when her Honour held at [38] - [39] that Attorney General should be named as a nominal defendant as opposed to the Head of State because costs is sought against the Head of State.
4.	The trial judge erred in fact and law in not upholding the review, the grounds of review and granting the orders sought. 
ISSUES FOR DETERMINATION
11.	Counsels’ submissions on the grounds of appeal were centred on two central issues, which are:

1.	Whether the appellant had filed the judicial review proceedings against the correct decision and decision maker; and 
2.	Whether Sir Bob Dade, the Governor General and the Head of State should have been named as a party to the proceedings or whether the Attorney General should have been named as a nominal defendant on behalf of the Head of State pursuant to s 3 of the CBASA?
SUBMISSIONS
12.	On the first issue, it is the appellant's contention that the reason given by the primary judge is flawed because s 27(1) of the Organic Law must be read together with s 56(2)(a) of the LLGA Act, which requires that a proclamation must be published in the Gazette. On the proper construction of both provisions, the final act of the decision-making process was the publication in the Gazette. 

13.	In support of his submission, the appellant relies on the case of Gelu v Sheehan [2013] PGNC 235; N548.

14.	The respondents contend that s 27(1) of the Organic Law gives powers to the second respondent as the Head of State to establish local-level governments and that is the final stage of the decision-making process. That the publication of the Gazette by the first respondent, as Minister pursuant to provisions of s 56(2) of the LLGA Act, is only a formal notification process.

15.	Both parties referred to ss 87 and 89 of the Interpretation Act.  It is the appellant’s contention that when s.56 of the LLGA Act is read in conjunction with ss 87 and 89 of the Interpretation Act, then the final act of the decision-making process is the Gazette, which is amendable to judicial review.  The respondents’ contention is that the Interpretation Act refers to a Gazette and that the publication thereof is the formal notification pursuant to s 56(2) of the LLGA Act. 

16.	On the second issue, in the proceedings the appellant had named Sir Bob Dade in his capacity as the Governor General as the second respondent.  In the preliminary issues raised in the Court below, the respondents contended that the Governor General was wrongly named as a party to the proceedings, and the trial judge held that by virtue of the provisions of s 3 of CBASA, the Governor General as Head of State was incorrectly named as a party to the proceedings and that the Attorney General ought to have been named as a nominal defendant on behalf of the State.

17.	The appellant contends that no claim was made against the Head of State as provided for in s.3 of CBASA, and the Head of State was correctly named as a defendant, and given that the State was named as a party to the proceedings as the third respondent and in light of the decision in Sammy Lodge Ltd v Sipison [2024] PGSC86; SC2618, the trial judge misinterpreted that application of s 3 of CBASA.

18.	The respondents' contention is that there was no error. The Attorney General should have been named as a party to the proceeding as stipulated under s 3 of the CBASA because the appellant joined the Head of State as a party and was seeking costs against him.
CONSIDERATION 
Whether the appellant had filed the judicial review proceedings against the correct decision and decision maker?

19.	The appellant relies on Gelu v Sheehan [2013] (supra) where it is stated at [para 14(b): 

“It is the ultimate or final decision in the decision-making process that is amenable to review. Where a statute provides for a series of steps to be taken, with decisions to be made at each step of the decision-making process, it is preferable to await the outcome of the final decision. It is the final decision in the decision-making process that is amenable to judicial review which ordinarily will be inclusive of earlier decisions made along each step of the process. This avoids multiplicity or duplicity of applications for leave for review. It is also to avoid unnecessary challenges to earlier decisions made in the decision-making process when the final decision has superseded earlier decisions: Ombudsman Commission v Peter Yama ( 2004) SC747. An applicant may not be permitted to hack back on those earlier decisions and instead, focus on the latest and ultimate or final decision.”
20.	The appellant did not refer to paragraph 14(a) of Gelu v Sheehan [2013] (supra) which we say is relevant. Paragraph 14(a) states:

“The decision the subject of the application for leave for review must be one that is a proper subject of or amenable to judicial review. It must be clearly identified in the leave application by reference to necessary particulars- the name of the statutory authority that made the decision that is empowered to make, the name of the person that exercised the statutory power and made the decision, the statutory provision pursuant to which the decision was made and a precise description of the decision itself.”

21.	It is common ground that the Head of State was acting on the advice of the NEC and by proclamation created the new LGGs and Wards pursuant to s 27(1) of the Organic Law. It is a power that he has been vested with under s 27(1) of the Organic Law.

22.	We have not been directed by the appellant to any other act that the Governor General is required to perform to create LLGs. For all intents and purposes, the final decision following a series of decisions was done when the Head of State made the proclamation pursuant to s 27(1) on 16 December 2024.

23.	 The appellant’s contention that the first respondent was responsible for the final decision is misconceived. The decision made by the first respondent was to publish the notification of the proclamation pursuant to section 56 of the LLGA Act, a decision not subject of the judicial review in the court below.

24.	The appellant’s submissions on the construction of s.56 of the LLGA Act is also misconceived. Section 56 reads: 

56. LOCAL-LEVEL GOVERNMENT GAZETTE.
(1) There shall be a Papua New Guinea Local-level Government Gazette, which shall be published as and when required.
(2) There shall be published in the Local-level Government Gazette–
(a) all proclamations made under Section 27(1) of the Organic Law; and
(b) notification of all Local-level laws; and
(c) all appointments or other matters or things that are required by this or any other Act to be so published or that are directed by the Minister to be so published (emphasis added).

25.	 The operative words under s 56 is “and”. The first respondent, Minister’s, power is to have published in the Local Level Government Gazette, all proclamations under s 27(1) of the Organic Law “and” all appointments and other matters that are required to be published. 

26.	As said, the first respondent, Minister’s, decision to publish was not the subject of the review. Also, not subject of the review in the court below was the contention that the proclamation was published in the incorrect Gazette. In any event the submissions by the appellant that it was not published in the correct Gazette has no merit considering s 87(1)(c) and (2) of the Interpretation Act which provides that any publication of the proclamation is sufficient.

27.	On the construction of ss 87 and 89 of the Interpretation Act, we are of the view that there was no error in the interpretation by the primary judge. S 89 states that the “act, matter or thing shall be deemed to have been done on the date of publication of the Gazette”. That is the decision comes into force on the date of publication. The nature of the decision or the decision maker is not altered.

28.	It follows and as correctly found by the primary judge, the correct decision was the proclamation by the Head of State under s 27 of the Organic Law made on 16 December 2024 and published in the National Gazette on 18 December 2025.

29.	The appellant is misconceived and confused as to the two distinct decisions.

30.	This then raises the issue of whether the Minister should have been joined as a party.

31.	In addressing similar issues, this Court in Wari v Ramoi and Dibela [1986] PNGLR 112 held:
(1)      As the Minister for Communications has no power under the Post and Telecommunications Act in relation to the termination of membership of the Commission, and as the advice to the Head of State is from the National Executive Council and not the Minister, the Minister was not a proper party to the proceedings.
(2)      The proper party to the proceedings should have been the Independent State of Papua New Guinea, pursuant to the Constitution, s 247(2).
(3)      Although there are no specific constitutional (or statutory) provisions to the effect that the Head of State may or may not be sued or proceeded against in Court for an official act performed by him or her on advice, the Head of State is nonetheless by virtue of the Constitution, s 86(2), 94(1)(a) and s 247(2), immune from judicial proceedings with respect to the exercise and performance of the powers, duties and responsibilities of his or her office.
(4)      (Obiter) The immunity from judicial proceedings afforded the Head of State under the Constitution, s 86(4), protects only the lawful exercise of the discretion which is contained in the advice. It does not protect the exercise of a discretion which is ultra vires or the exercise of a discretion which may be inconsistent with the provisions of the Constitution.

32.	Similarly, here, the Minister had no powers under the LLGA Act to make the proclamation. Under s 27(1) of the Organic Law the advice to the Head of State is from NEC and not the Minister. Following Wari v Ramoi and Dibela [1986] PNGLR 11, the Minister was incorrectly claimed as the decision maker.

Whether Sir Bob Dade, the Governor General and the Head of State should have been named as a party to the proceedings or whether the Attorney General should have been named as a nominal defendant on behalf of the Head of State pursuant to s 3 of the CBASA?

33.	There are distinct questions that arise out of this issue:

1.	Whether the Head of State should have been named as party?
2.	Whether the Attorney General should have been named as a nominal defendant on behalf of the Head of State pursuant to s 3 of the CBASA?

34.	 In Sammy Lodge Limited v Sipison & Ors [2024] SC2618, this Court in addressing the issue of the Head of State acting on advice and whether he should have been named adopted Wari v Ramoi and Dibela [1986] (supra) finding, as stated in the preceding paragraph, that the proper party to be sued was the Independent State of Papua New Guinea. 

35.	In Obiter this Court was of the view that only the decision of the Head of State acting ultra vires can be reviewed. Here there was no challenge to his decision.  Following Wari v Ramoi and Dibela [1986] (supra) and Sammy Lodge Limited v Sipison & Ors [2024] (supra) the Head of State should not have been named as a party.

36.	As to the naming of the Attorney General, the provisions of s 3 of the CBASA are clear that the Attorney General should have been named as a nominal defendant. However, this ground of appeal becomes otiose considering that the wrong decision maker was claimed and the wrong decision identified and that the Head of State should not have been named in the first instance.

37.	In the end the appeal must fail.
ORDERS
38.	In light of the reasons given above we make the following orders:
1)	The appeal is dismissed.
2)	The order of the National Court given on 30 June 2025 in proceedings OS(JR) 56 of 2025 is affirmed. 
3)	The appellant shall pay the respondents costs of this Appeal on party- party basis to be taxed if not agreed.

Judgement and orders accordingly
_______________________________________________________________
Lawyers for the appellant: Jema Lawyers	
Lawyer for the first, second and third respondents: Solicitor-General