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Agiru v Potape [2016] PGNC 396; N6653 (14 March 2016)

N6653

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.821 OF 2015

GOVERNOR ANDERSON PAWA AGIRU

Plaintiff

V

HON. FRANCIS POTAPE
Open Member for Komo-Magarima

First Defendant

HON. THOMAS POTAPE
Deputy Governor and Komo-Magarima RLLG President

Second Defendant

HON. JAMES HAPE
Upper Wage RLLG President

Third Defendant

HON. ERIC YAWAS
Hulia RLLG President

Fourth Defendant

HON. EFALA PABE
Mt Bosave RLLG President

Fifth Defendant

HON. THOMAS TAWI
Tehi RLLG President

Sixth Defendant

HON. MARKUS TAPIA
Kopiago RLLG President

Seventh Defendant

HON. GULUWA WAKINDA
Lower Wage RLLG President

Eighth Defendant

HON. CHARLIE APALU
Wage RLLG President Awi-Pori and Lagayu Wage RLLG President
Ninth Defendant

Waigani: Kariko, J
2016: 9 & 14 March

PNG Cases cited:
Michael Kewa v Elias M. Kombo (2004) N2688
Niugini Mining Ltd v Joe Bumbandy (2005) SC804
Polling v MVIT [1986] PNGLR 230
Telikom PNG Ltd v ICCC (2008) SC906
The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273

Overseas cases
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Legislation:
Organic Law on Provincial Governments and Rural Local-level Governments
Provincial Governments Administration Act 1997
Standing Orders of the Hela Provincial Assembly

Counsel:
Mr G Gileng, for the Plaintiff
Mr P Ame & Mr A Rake, for the Defendants

RULING

14^th March, 2016

1. KARIKO J: This is an application filed by the defendants on 16 February 2016, to have the proceedings dismissed.
   
2. Counsel handed up written extracts of submissions which they spoke to. The affidavits relied upon are listed in those extracts.
   

Background

3. From the submissions and affidavit evidence I set out the relevant background facts concerning the dispute between the parties which relates to the governorship of the Hela Province. Clearly, the main issue is, whether the plaintiff Anderson Agiru remains the Governor of Hela or has he been lawfully removed as the Governor and replaced by Francis Potape, the first defendant? Mr Agiru claims that he is still the Governor and that his purported removal as Governor by the defendants and replacement by Mr Potape was unlawful and therefore null and void.
   
4. The facts that do not seem to be in dispute are these:
   
   • By law Mr Agiru assumed the office of the Governor of the Hela Province and Chairman of Hela Provincial Assembly upon being duly elected as the Provincial Member for Hela at the 2012 National General Elections.
   • All members of the National Parliament automatically qualify as members of the Provincial Assembly and that includes Mr Potape who is the member for the Komo-Magarima electorate.
   • The other defendants are also members of the Assembly and include certain Presidents of rural Local-level Governments and nominated representatives.
   • By letter dated 14 December 2015 and addressed to the Governor, the defendants requested Mr Agiru to convene a “special meeting” of the Assembly on 22 December 2015 in Tari because the Assembly had not met regularly as required by law and to discuss “other matters”.
   • That letter was served on the Assembly Clerk and the Governor on 16 December 2015
   • On 17 December Mr Agiru responded stating the proposed date was too soon and that a meeting could be convened at an earliest convenient time.
   • On the understanding that moves were afoot by the defendants to remove him as the Governor, Mr Agiru filed these proceedings on 21 December 2015 and at the same time applied to have the defendants restrained from holding the proposed meeting and any other meetings
   • On 22 December Hartshorn, J issued ex parte the interim injunctions sought and ordered the matter return for inter prate’s hearing on 5 January 2016
   • Without waiting for a reply from the Governor to their letter of 14 Dec the defendants led by Mr Potape convened a meeting purportedly of the Hela Provincial Assembly on 22 December at the Bushman Hotel Tari.
   • At the meeting a notice of motion was put for a vote of no confidence against the Governor and the meeting adjourned for 7 days (to 29 December) for the vote to take place.
   • The defendants say that Hartshorn, J’s orders and Mr Agiru’s letter of 17 December were served on them on 22 December after meeting ended.
   • Mr Agiru filed an Amended Originating Summons on 24 December seemingly upon learning of the meeting,
   • That same day, 24 December 2015 the defendants filed an application to set aside Hartshorn, J’s orders of 22 December.
   • The defendants again convened a meeting purportedly of the Hela Provincial Assembly on the morning of 29 December at the Bushman Hotel and voted in favour of the motion of no-confidence against Mr Agiru as the Governor and then elected in his stead Mr Potape as the new Governor.
   • That afternoon Koeget, AJ set aside the interim orders of Hartshorn J essentially on the basis of being satisfied that the meeting of 22 December sought to be restrained took place before the orders were served and his Honour therefore agreed the restraining orders served no purpose.
   • In response to the events of 29 December 2015, Mr Agiru filed a Further Amended Originating Summons on 4 January 2016 and at the same time filed an application for restraining orders against the defendants from acting on the resolutions of the meetings they held.
   • On 7 January 2016, Hartshorn, J heard the application and issued the restraining orders sought
   • Aggrieved, the defendants on 8 January filed for leave to appeal the decision in the Supreme Court.
   • On 13 February Sakora, J sitting as a single judge Supreme Court refused leave.
   • On 16 February this application was filed

5. There are several grounds upon which the defendants seek to have these proceedings dismissed. The grounds in essence allege the proceedings are an abuse of process or that no reasonable cause of action is disclosed. The appropriate provision for the application would therefore be O12 r40 National Court Rules. I now discuss those grounds of the application.
   

Amendments to the Originating Summons

6. The defendants firstly argue that the plaintiff amended his originating summons without an order of the Court or without first obtaining leave as required by O8 r50 National Court Rules.
   
7. The parties agree that an originating summons is not a “pleading” and therefore O8 r51 that allows for amendment to a pleading without leave does not apply in the present case. I accept the argument that to amend his originating summons, the plaintiff ought to have applied for leave of the Court pursuant to O8 r50National Court Rules.
   
8. Mr Gileng for the plaintiff conceded as much but strongly submitted the Court exercise its discretion in the interest of justice to validate his client’s originating summons as amended. Although no formal application was before the Court, he urged the Court to waive the requirements of the Rules and allow the amendments already made. He argued that the nature of the dispute, the events and circumstances that unfolded, and the importance in having the dispute properly resolved by the Court warranted this course.
   
9. The Courts have acknowledged that non-compliance with the Rules should not be used as a basis to dismiss a case as the Rules are not an end in themselves but are a means to an end as a code of practice to enable parties arrive at a just solution; see Polling v MVIT [1986] PNGLR 230 and Niugini Mining Ltd v Joe Bumbandy (2005) SC804.
   
10. In my opinion, the plaintiff’s verbal application may be addressed by considering O1 Rules7 and 8. O1 r7 states: “The Court may dispense with compliance with any of the requirements of these rules, either before or after the occasion for compliance arises.” while O1 r8 provides: “Non-compliance with any of the requirements of any rule of practice for the time being in force, shall not render proceedings void, unless the Court directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit”. Those Rules allow the Court considerable discretion including the power to dispense with the requirements of the Rules at any time including “after the occasion for compliance arises”. Non-compliance with the Rules does not render the proceedings void and the Court may order the correction or validation of any irregularity caused by non-compliance. Order 1 Rules 7 and 8 are of general application to all the rules in the National Court Rules and the interest of justice is the paramount consideration in exercising the discretion vested in the Court by these rules: Niugini Mining Limited v Joe Bumbandy (supra).
    
11. In order to apply O1 Rules 7 and 8 to validate the amendments to the Originating Summons, I consider it necessary to first ask the question; whether leave would have been granted to amend that document had leave been properly sought? Eight considerations are usually taken into account when deciding, whether or not to grant leave to amend a document in a proceeding? They are set out in The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273 and Michael Kewa v Elias M. Kombo (2004) N2688. In response to the questions I answer as follows:

1. Will the amendments enable the Court to determine the real question in controversy between the parties? Yes, the amendments relate to the process undertaken to remove the Governor
2. Will the amendments correct any defect or error in the proceedings? The amendments will better particularise the issues.
3. Will the amendments cause real prejudice or injustice to other party? No, the central issue remains – whether the process to remove the Governor and have him replaced was done according to law
4. Is the application for the amendments made mala fide or bona fide? Bona fide
5. Can the other party be fairly compensated with costs for such amendments? Yes, if justified
6. Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings? No
7. Where do the interests of justice lie? It lies in allowing the amendments because the removal of Mr Agiru as the Governor and the election of Mr Potape in his place is an issue that needs to be fully ventilated and argued by the parties and determined by this Court.
8. Are the proposed amendments efficacious? That is, are they proper amendments? Yes
   
12. Based on those answers, I am of the view that the Court would have exercised its discretion to allow the amendments if the required application for leave had been made.
    
13. The issues raised in these proceedings are of great public interest and in particular for the people of the Hela Province. There is a tussle between Mr Agiru and Mr Potape over the Governorship (the political head) of the Province. The law provides for the appointment of the Governor and also his removal. Such appointment and removal are very serious matters. They can only happen in accordance with the law, being the Organic Law on Provincial Governments and Rural Local-level Governments, the Provincial Governments Administration Act 1997 and the Standing Orders of the Hela Provincial Assembly.
    
14. From the background facts earlier outlined, it is clear that three main events occurred:
    
    • The proposal for the Hela Provincial Assembly meeting on 22 December 2015
    • The purported Assembly meeting of 22 December 2015
    • The purported Assembly meeting of 29 December 2015
      
15. After the meeting of 22 December was proposed, the Originating Summons was filed. After the meeting of 22 December, the Amended Originating Summons was filed and after the meeting of 29 December 2015 the Further Amended Originating Summons was filed. It is clear that that the amendments were in response to the two meetings that were critical events in the process undertaken by the defendants to remove Mr Agiru as the Governor. The central issue remained the same throughout the amendments and that is whether the meetings of 22 and 29 December 2015 were validly convened and conducted in accordance with the law. The amendments to the Originating Summons were deemed necessary by the plaintiff and were done to properly crystalize the issues arising from the meetings.
    
16. No doubt Hartshorn, J was satisfied there are serious questions to be tried when he issued the interim injunctive orders of 7 January 2016 restraining the defendants from acting on the resolutions passed at their meetings of 22 and 29 December 2015 and to allow the plaintiff to continue duties as the Governor of Hela. His Honour would have been satisfied that there is an arguable case in challenging the process for the removal and replacement of Mr Agiru as Governor.
    
17. I again stress that the dispute over the Governorship of Hela Province is an issue that needs to be fully ventilated and argued by the parties and determined by this Court. The interest of justice requires this.
    
18. From the foregoing reasons, it is my opinion that in the interests of justice this Court dispense with the requirements under the National Court Rules for an application to be in the form of a formal notice of motion and the requirements for leave to amend the originating summons, and that this Court then regularise or validate the amendments to the originating summons already filed.
    

Order 12 Rule 1

19. Secondly, the defendants contend that the plaintiff should have pleaded O4 r3 (1) National Court Rules rather than O12 r1 as the jurisdictional basis for seeking declarations as substantive relief.
    
20. There is no requirement to cite the jurisdiction basis for seeking relief in an originating summons. The plaintiff has chosen to cite those provisions he relies on for his relief. O12 r1 is a general provision for granting of orders and I am unable to accept the argument that the plaintiff cannot rely on this Rule. But the argument by the defendants goes further to state that the proper jurisdictional basis to claim the relief sought is O4 r3. That provision deals with commencement of proceedings and when it may be appropriate to issue a writ of summons or an originating summons.
    
21. The Court has the discretion to grant declaratory orders, where there is a clear case of competing rights between the parties. Factors to be established before a declaratory order can be made are set out in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 that case has been followed and applied by the Courts in this jurisdiction.
    

Section 155(4) Constitution

22. The third ground of this application is a claim that section 155(4) Constitutions is not applicable in seeking the declaratory orders.
    
23. I repeat my remarks in relation to the previous ground that there is no requirement to cite the jurisdiction basis for seeking relief in an originating summons. Whether the relief sought can be granted by the Court pursuant to O12 r1 or s.155(4) Constitution or another legal basis is a matter for argument at the hearing of the substantive matter.
    

Judicial Review

24. The next argument by the defendants is that the proper mode of proceedings is a judicial review as the plaintiff is seeking an order in the nature of a prohibition – to stop the new Governor from carrying out his duties. This argument is misconceived. The plaintiff is seeking to have his removal and replacement declared invalid. The Supreme Court made it clear in Telikom PNG Ltd v ICCC (2008) SC906 that a party wishing to challenge the decision of a public authority must use Order 16 if orders in the nature of prerogative writs such as mandamus, prohibition, certiorari or quo warranto are sought. If, however, only an injunction or declaration is sought, the plaintiff has a choice: Order 4 (Writ of Summons or Originating Summons) or Order 16 (Judicial Review) can be used. Here the plaintiff does not seek any of the prerogative writs. Only declarations and injunctions are sought. Therefore the proceedings have not been improperly commenced under Order 4. There is no abuse of process.
    

Effect of Koeget, AJ’s Decision

25. Finally, the defendants argued that Koeget, AJ’s decision of 29 December 2015 setting aside the interim injunctive orders issued by Hartshorn, J on 22 December 2015 recognized the process of removing Mr Agiru as the Governor pursuant to a motion of no-confidence.
    
26. Again, this submission is misconceived. Koeget AJ’s decision on 29 December 2015 simply set aside the interim injunctive orders issued by Hartshorn, J and nothing more. The orders did not resolve the claims filed by the plaintiff in his originating summons. Certainly there was no determination that the process adopted by the defendants to remove the Governor was lawful. I think it is safe to say that the plaintiff saw no merit in appealing Koeget, AJ’s decision as he has not challenged the decision in any way at all.
    

Orders

27. The orders of this Court are:
    
    1. The defendants’ application to dismiss the proceedings is refused.
    2. The requirement for the plaintiff to file a notice of motion with supporting affidavits under O4 r38 for an interlocutory application is dispensed with pursuant to O1 r7
    3. The requirement for the plaintiff to first obtain leave of the Court before amending the originating summons under O8 r50 is dispensed with pursuant to O1 r7
    4. Pursuant to O1 r8, the Amended Originating Summons and the Further Amended Originating Summons filed by the plaintiff on 24 December 2015 and 4 January 2016respectively are taken to have been properly filed on those dates.
    5. Costs of this application shall be in the cause.
    6. Time is abridged.
       

___________________________________________________________
Posman Kua Aisi Lawyers : Lawyers for the Plaintiff
Ame Lawyers : Lawyers for the Defendants