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Bando v Agiru [2014] PGNC 46; N5567 (2 April 2014)

N5567

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 63 OF 2014

BETWEEN

WILLIAM BANDO
Plaintiff

AND

ANDERSON AGIRU in his capacity as the Chairman of the Hela Provincial Executive Council
First Defendant

AND

HELA PROVINCIAL EXECUTIVE COUNCIL
Second Defendant

AND

LAWRENCE OLKOBEN
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2014: 27th February & 02nd April

PRACTICE & PROCEDURE – Ex parte interim injunction – Setting aside of – Principles of – Grounds of – Constitution – s. 155(4) – National Court Rules – O 16, rr. 3 & 5.

JUDICIAL REVIEW – Appointment of Provincial Administrator – Appointment process in progress – Recommendation by Provincial Executive Council of names of candidates for appointment – Appointing authority yet to make a decision – Premature to intervene and stop process – Organic Law on Provincial Government and Local-level Government - s. 73(2) – Public Services (Management) Act, 1995 – s. 60.

Cases cited:

Paul Asakusa v Kumbakor, Minister for Housing (2008) N3303
Francis Damem v Mark Mapakai as Minister for Justice & Ors (2004) N2730 Thadeus Kambanei v The National Executive Council & 5 Ors (2004) N3065

Counsel:

Mr A. Waria, for Plaintiff
Mr G. Gileng, for First and Second Defendants
No appearance, for Third Defendant
Mr E. Geita, for Fourth Defendant

RULING ON APPLICATION TO SET ASIDE EX PARTE INTERIM INJUNCTION

02nd April, 2014

1. MAKAIL, J: Pending the hearing of an application for leave to apply for judicial review of the decision of the first and second defendants to recommend to the National Executive Council ("NEC") the revocation of the appointment of the plaintiff as acting Provincial Administrator of Hela Province and appointment of the third defendant as Provincial Administrator, the plaintiff obtained an ex parte interim injunction restraining the NEC from considering and acting on the recommendation until further order.

Brief Facts

2. This ex parte interim order was obtained on 17th February 2014 after the plaintiff learnt of the recommendation from a Provincial Executive Council ("PEC") meeting convened on 01st February 2014 where the PEC recommended to NEC to firstly, revoke his appointment as acting Provincial Administrator and secondly, out of two candidates short-listed for the position, appoint the third defendant as Provincial Administrator. A third short-listed applicant Brian Bepo was omitted or not recommended. This ex parte interim order stopped the NEC from deliberating on the matter at 2:00 pm on that day.

Grounds to set aside ex parte interim order

3. Ten days later, on 27th February 2014, the defendants applied to set aside the ex parte interim order. As is normally the case when a party applies for ex parte interim orders, the Court was placed with only the submission of the plaintiff, although he was obliged to disclose all matters that may be relevant for the application. Hence, at the time the Court heard and granted the ex parte interim order, it did not have the benefit of arguments of the defendants.

4. Now that the Court has had the benefit of the arguments of the defendants, it notes the first and second defendants leading role in the setting aside of the ex parte interim order and the support of the fourth defendant. They relied on four grounds. They were:

• Firstly, the process of appointment of a Provincial Administrator has not been completed and it was premature for the Court to intervene and stop it.
  
• Secondly, the ex parte interim order was wrongly granted because it was granted before the plaintiff was granted leave to apply for judicial review under O 16, rr. 3 & 5 of the National Court Rules. As a consequence of this breach, there was and is no proceeding on foot for the ex parte interim order to be granted and maintained.
  
• Thirdly, the proceeding is incompetent because the plaintiff failed to cite in the notice of motion, the relevant provisions of the National Court Rules or any other law invoking the jurisdiction of the Court to grant the ex parte interim order.
  
• Finally, there was and is no serious issue to be tried because Parliament recently passed a Constitutional amendment to the Constitution on the procedure for appointments of Departmental Heads, Provincial and District Administrators. By this amendment, it removed the Public Services Commission from being part of the consultation process and the whole process of appointment of Departmental Heads, Provincial and District Administrators. Thus, there was and is no requirement for the first and second defendants to consult the Public Services Commission or accept its recommendation.
  

Consideration of Grounds

5. In support of the first ground, Mr Gileng of counsel for the first and second defendants submitted that the ex parte interim order was prematurely obtained because the NEC as the appointing authority has yet to deliberate and make a decision on the appointment of the Provincial Administrator. If there was or is any issue in relation to the manner in which the defendants had handled the appointment of the Provincial Administrator, the plaintiff was and is not left without a remedy. He can always apply to the Court to review the process after the decision by the NEC.

6. Mr Waira submitted that the ex parte interim order should be perfected because there is a serious issue to be tried and the balance of convenience favours its continuation. The other consideration is that, damages would not be an adequate remedy. It is also in the interests of justice that it be perfected to preserve the status quo until the determination of the proceedings. Counsel cited the case Paul Asakusa v Kumbakor, Minister for Housing (2008) N3303 to support this submission.

7. He further submitted that the Court has discretion to intervene and review the decision making process where the decision making body has abused its power or acted unfairly. In this case, the plaintiff has established that there is a serious issue to be tried, in that the process of appointment of the Provincial Administrator was not followed by the defendants. There is a serious flaw in the process.

8. The particulars of the flaw are these; under s. 73(2) of the Organic Law on Provincial Government and Local-level Government and s. 60(1)(d)&(e) of the Public Services (Management) Act, 1995, the first and second defendants were required to submit a list of three names of candidates for appointment to the NEC. This is a mandatory requirement but they did not. Instead, they submitted a list of only two names; that of the plaintiff and the third defendant and recommended that the plaintiff's appointment as acting Provincial Administrator be revoked and the third defendant be appointed as Provincial Administrator.

9. The other issue is that the PEC alleged that K4 million went missing during the plaintiff's term as acting Provincial Administrator. This allegation was used as a ground to revoke the plaintiff's appointment. Mr Waira submitted that by using it to justify their recommendation to revoke the plaintiff's appointment, the defendants had denied the plaintiff natural justice because he was not given an opportunity to respond to it.

10. Mr Waira submitted that these are serious issues and must be properly considered by the Court at trial. He added that these issues under-mind and bring into disrepute, the integrity of the appointment process and the Court will be seen as upholding the process if it were to intervene. All these matters support the plaintiff's contention that it was and is not premature for the Court to intervene and it must intervene to correct these serious flaws in the appointment process.

11. On the question of appointment of Provincial Administrator, s. 73(2) of the Organic Law on Provincial Government and Local-level Government states:

"(2) All substantive appointments to offices of Provincial Administrator shall be made by the National Executive Council from a list of three persons submitted by the Provincial Executive Council concerned from a list of persons recommended to the Provincial Executive Council by the Public Services Commission following procedures prescribed by or under an Act of the Parliament."

12. The procedure for appointment of Provincial Administrator is set out in s, 60 of the Public Services (Management) Act, 1995 as follows:

"60. Procedures relating to substantive appointment of Provincial Administrator.

(1) The procedures relating to the substantive appointments to offices of Provincial Administrators referred to in Section 73(2) of the Organic Law on Provincial Governments and Local-level Governments are as follows:—

(a) where an office of Provincial Administrator becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personnel Management shall, subject to Subsections (2) and (3)—

(i) declare that a vacancy in the office of Provincial Administrator exists or is about to exist; and

(ii) obtain from the Central Agencies Co-ordination Committee the minimum requisites for that office; and

(iii) notify the Commission and the Provincial Executive Council concerned of the vacancy; and

(iv) advertise for applications for the office—

(A) on at least two occasions in a newspaper circulated nationally; and

(B) in such other manner as it considers appropriate;

(b) after consideration and assessment of the applicants and consultation with the Central Agencies Co-ordination Committee, the Departmental Head of the Department of Personnel Management shall—

(i) compile a list of not less than five candidates who have at least the minimum requisites for the office; and

(ii) submit to the Commission for its consideration—

(A) the list under Subparagraph (i); and

(B) all applications received in response to the advertisements under Paragraph (a)(iv);

(c) an assessment of an applicant under Paragraph (b) shall be based on—

(i) the minimum requisites for the position; and

(ii) where available, any appraisal of performance and discipline under Section 24A; and

(iii) prescribed criteria;

(d) the Commission shall consider the list submitted under Paragraph (b)(ii)(A) and all applications received in response to the advertisements under Paragraph (a)(iv) and shall—

(i) compile therefrom a list of up to three candidates in order of preference; and

(ii) submit the list under Subparagraph (i) as a recommendation to the Provincial Executive Council concerned;

(e) the Provincial Executive Council shall—

(i) from the list submitted to it under Paragraph (d)(ii) submit to the National Executive Council a list in order of preference for appointments as Provincial Administrator and the National Executive Council shall make an appointment from the list; or

(ii) where it does not consider any of the persons on the list submitted to it under Paragraph (d)(ii) suitable for appointment, so advise the Commission and the Departmental Head of the Department of Personnel Management and the procedure set out in Paragraph (a)(iv), (b), (c), (d) and (e)(i) shall be followed.

(2) Where—

(a) an office of Provincial Administrator becomes vacant or is likely to become vacant; and

(b) the person holding the office or who held the office immediately before it became vacant is willing and eligible to continue in that office,

the Departmental Head of the Department of Personnel Management shall obtain from the Central Agencies Co-ordination Committee a report under Section 24A on the performance and discipline of that person, and where such report justifies the re-appointment of that person shall notify the Commission accordingly and, subject to Subsection (3)(b), the procedure specified in Subsection (1) shall not be followed.

(3) On receipt of a notification under Subsection (2), the Commission shall recommend to the Provincial Executive Council that the person be re-appointed and—

(a) where the Provincial Executive Council is agreeable to the re-appointment, it shall advise the National Executive Council to re-appoint the person as substantive Provincial Administrator; or

(b) where the Provincial Executive Council is not agreeable to the re-appointment—

(i) it shall so advise the Commission and the Departmental Head of the Department of Personnel Management; and

(ii) the procedure specified in Subsection (1)(a), (b), (c), (d) and (e) shall be followed." (Underlining is mine).

13. It is true and I accept Mr Waira's submission that the Court has discretion to intervene and review the decision making process where the decision making body has abused its power or acted unfairly. It is also true that the Court should not unnecessarily interfere with the exercise of power by the decision making body. The threshold issue here is whether this is an appropriate case for judicial intervention.

14. Past precedents have shown that Courts have intervened in disciplinary cases where an investigation is underway as a result of an executive decision and one is suspended. One such case was the then Managing Director of National Housing Corporation Mr Paul Asakusa (supra), a case cited by Mr Waira in his submission. The others were Francis Damem v Mark Mapakai as Minister for Justice & Ors (2004) N2730 and Thadeus Kambanei v The National Executive Council & 5 Ors (2004) N3065.

15. But these cases concerned the decision of the NEC to suspend the plaintiffs pending investigations into allegations of misconduct in office. The Court intervened because it held that the decision to suspend was a one-off stand -alone decision. In this case, this Court is not concerned with the decision to suspend the plaintiff but the process of appointment of a Provincial Administrator. In my view, those cases are not relevant and do not assist the plaintiff.

16. In my view, before the Court can intervene, three things must be established; first, the decision making body must make a decision and secondly, that the decision making body failed in its duty to follow the due process established by law or failed to act fairly. Thirdly, there are no alternative remedies available by which the aggrieved person may seek redress.

17. In this case, the decision making body is the NEC and I accept Mr Gileng's submission that it is the appointing authority. It has yet to make a decision. The plaintiff's concerns in relation to the list of names of candidates for appointment was one less than the required constitutional and statutory number and that he was denied natural justice by not being heard in relation to the allegation of missing K4 million, are matters that can be raised once the NEC makes a decision. Similarly, in my view, the plaintiff's concern about the integrity of the appointment process being under-mind or brought into disrepute can be raised once the NEC makes a decision.

18. In my view, the recommendation by the first and second defendants is not a final decision or to use the words of Injia, DCJ (as he then was) in Francis Damem's case (supra) a "one-off stand-alone" decision because it is subject to the approval of the NEC. I say this because according to s. 60(1)(e)(i)&(ii) (supra), the NEC may make an appointment based the recommendation by the PEC or reject it and direct the appointment process to be re-done in order to find a suitable candidate to appoint. Thus, the NEC is not bound by the PEC's recommendation and the PEC's recommendation remains only a recommendation. I am satisfied that the recommendation by the first and second defendants is part of the whole decision making process by which a Provincial Administrator is appointed.

19. Accordingly, I accept Mr Gileng's submission that as the NEC, as the appointing authority, has yet to make a decision on the appointment of the Provincial Administrator, it is premature for the Court to intervene and stop it. The appointment process is in progress and the Court must allow it to be completed. After its completion and if the plaintiff is aggrieved by the decision, he may seek review of the decision. I uphold this ground.

20. Having upheld this ground, I consider it not necessary to consider the remaining grounds of the application.

Order

21. The orders will be that the ex parte interim injunction of 17th February 2014 is set aside forthwith and the matter is adjourned to a date to be fixed for the hearing of the application for leave to apply for judicial review. Costs shall be reserved until then.

Ruling and Orders accordingly
_______________________________________________________________
Cappollo Lawyers: Lawyers for Plaintiff
Posman Kua Aisi Lawyers: Lawyers for First and Second Defendants
Acting Solicitor-General: Lawyers for Fourth Defendant