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Hamaka v Dion [2016] PGNC 60; N6249 (11 April 2016)

N6249

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 647 OF 2015

BETWEEN

ANTHONY HAMAKA as elected representative of Homa and Chairman of BOARD OF MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
First Plaintiff

AND

BEN DABE as elected representative of Paua and member of the BOARD OF MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
Second Plaintiff

AND

TATE HARABU as elected representative of Paguale Yalanda and member of the BOARD OF MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
Third Plaintiff

AND

PAPE PUNGA as elected representative of Homa Paua People’s Association and member of the BOARD OF MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
Fourth Plaintiff

AND

TIMUGU IRALI as elected representative of North West Moran and member of the BOARD OF MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
Fifth Plaintiff

AND

MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
Sixth Plaintiff

AND

HON. LEO DION as MINISTER FOR INTER-GOVERNMENT RELATIONS
First Defendant

AND

DEPARTMENT OF PROVINCIAL & LOCAL-LEVEL GOVERNMENT AFFAIRS
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2016: 11th March & 11th April

JUDICIAL REVIEW – Review of Ministerial powers on appointment – Appointment of Chairman and Members of Management Committee – Management Committee of Special Purpose Authority – Procedure for appointment and revocation discussed – Local-level Governments Administration Act, 1997 – Sections 42, 43, 44 & 45

PRACTICE & PROCEDURE – Application to dismiss proceedings – Competency of proceedings – Lack of authority – Res judicata – National Court Rules – Order 12, rule 40 (1) (c)

Cases cited:
Eliakim Laki & Ors v. Maurice Alaluku & Ors (2002) N2001
Peterson Borasu & Ors v. Romilly Kila Pat & Ors (2012) N4738
Simon Mali & Ors v. The State (2002) SC690

Counsel:
Mr. P. Harry, for First, Second, Third, Fifth & Sixth Plaintiffs
Mr. N. Saroa, for Fourth Plaintiff
Mr. M. Kombri, for Sixth Plaintiff
Mr. S. Soi, for Defendants

JUDGMENT
11th April, 2016

1. MAKAIL, J: This is the Plaintiffs’ application to review an exercise of Ministerial power by the First Defendant (“Minister”) on 21st April 2015 to revoke the appointment of the Chairman and members of the Management Committee of the Sixth Plaintiff and replacing them with new Chairman and members. The Plaintiffs invoke the judicial review jurisdiction of the National Court pursuant to Order 16 of the National Court Rules and seek, amongst other things, an order to declare the exercise of power null and void and further an order in the nature of certiorari to quash it.

Background Facts

2. Based on the various affidavits relied on by the parties, much of the facts are not disputed. By a National Executive Council’s decision, the National Government made a policy to establish Special Purpose Authorities in major resource project areas to work alongside and in partnership with Local-level Governments in a given locality to implement key Government development policies. The primary purpose of the Authority is to manage and expend funds derived from resource projects for various projects identified by the Authority and, in this instance, under the various Agreements including the Moran Petroleum Development Project Agreement. The funds are predominantly Infrastructure Development Grants (“IDG”) and Business Development Grants (“BDG”). These funds are used to fund “impact” projects such as schools, health centres, roads, and bridges and assist landowners to set up businesses to name a few. The idea is to take the responsibility away from the Provincial Government and place it in the hands of a body where there will be more landowner participation in the management and control of funds.

3. Based on the policy decision and section 42 of the Local-level Governments Administration Act, 1997 (“LLGA Act”) the Head of State issued a Proclamation for the legal framework of the Authority. Each Authority shall be governed by a Constitution. In this case the Constitution of the Moran Local-level Government Special Purpose Authority (“MLLGSPA”), amongst other things, established the Management Committee (“Committee”) which comprises of thirteen members.

4. Out of this, three are landowner representatives of Homa, Paua and Paguale Yalanda local areas, three are representatives of land groups within the Moran project area namely Homa Paua People’s Association, North West Moran and Aporo’Urri Resource Owners Association, one representative from the Hulia Rural Local-level Government, one Youth representative from the project area, one from the Department of Finance and Treasury, one from the Department of Petroleum and Energy and the other from the Department of National Planning and Monitoring. The second last member is from the Moran Project Operator and the last is the District Administrator of Komo Magarima District. The Chairman is elected by the members.

5. It is alleged that the controversy is, on 20th November 2014 the Minister made the following appointments; Anthony Hamaka (First Plaintiff) representing Homa Incorporated Land Group. He was also elected Chairman, Ben Dabe (Second Plaintiff) representing Paua Incorporated Land Group, Tate Harabu (Third Plaintiff) representing Baguale Yalanda Incorporated Land Group, Pape Punga (Fourth Plaintiff) representing Homa Paua People’s Association, Timugu Irali (Fifth Plaintiff) representing North West Moran Incorporated Land Group, Paul Yawe representing Aporo’ Urri Resource Owners’ Association, Danny Tadabe representing Hulia Rural Local-level Government, Patterson Pipi representing youths and Yumbi Yari as District Administrator.

6. The list of names provided by the Hulia Rural Local-level Government (“Hulia RLLG”) and was published in the National Gazette by the Minister on 22nd April 2015 excluded the names of the Plaintiffs but contained names of those acknowledged by the Minister on 20th November 2014 namely Paul Yawe representing Aporo’Urri Resource Owners Association, Patterson Pipi representing Hulia RLLG, Danny Tadabe representing youths and Yumbi Yari as District Administrator. Gibson Tigi representing North West Moran Incorporated Land Group was included in the list and appointed Chairman. It is further alleged that Mr. Tigi was not appointed by the relevant ILG Chairman but by Pai Parapia Resource Owners Association.

7. The controversy led to a further dispute in relation to which group controlled the Authority including control and use of funds in the operating account of the Authority at Bank of South Pacific Limited. As a consequence on 22nd December 2015 the Court issued an interim injunction restraining further use of funds until further order. An attempt was made by Mr. Tigi’s group to ease the freeze on the funds so that they could have access to some of the funds to pay debts incurred in defending these proceedings but was unsuccessful.

Grounds of Review

8. Breach of natural justice is one of the grounds of review. The other is unreasonable exercise of power under the Wednesbury principle of unreasonableness. But the more significant and perhaps the determinative ground is ultra vires. In my view it forms the heart of the controversy between the parties and raises the question of power of the Minister to revoke appointments and appoint Chairman and members of the Committee.

Preliminary Issues

9. Before I embark on addressing this question, it is to be noted that there are preliminary issues which will need to be resolved first and I deal with them now. First is the issue of legal representation of the Sixth Plaintiff. It will be noted that Stevens Lawyers are retained as lawyers for the Sixth Plaintiff. In the same vein, Kombri & Associates are retained by it. Thus, it is quite clear that there is a conflict as to legal representation of the Sixth Plaintiff.

10. Secondly, this conflict has led to a further conflict. Kombri Lawyers assert that they have instructions from the current Chairman Mr. Tigi and members of the Board of the Sixth Plaintiff to oppose the application for judicial review and have filed a motion seeking its dismissal for being an abuse of process pursuant to Order 12, rule 40 (1) (c) of the National Court Rules. Mr. Kombri who appeared at the trial submits, amongst other things, that the institution of the proceedings by the Sixth Plaintiff along with the other Plaintiffs was unauthorised because it was not approved by the Committee of the Sixth Plaintiff.

11. As to the other Plaintiffs, he submits that given that they have commenced these proceedings as “elected representatives” of the various land groups of Moran project area the true nature of the proceedings is a representative action. Based on past decided cases of Simon Mali & Ors v. The State (2002) SC690; Eliakim Laki & Ors v. Maurice Alaluku & Ors (2002) N2001; Peterson Borasu & Ors v. Romilly Kila Pat & Ors (2012) N4738 and many others, it was held that in representative actions, all intended Plaintiffs must be named and duly identified in the originating process. Further, each and every intending Plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There is no evidence to establish that they have complied with these requirements and the proceedings should be dismissed.

12. As to the issue of legal representation, I am of the view that its determination is dependent on the nature of interest or right that has been interfered with or breached by the Minister. As far as I can see the nature of interest or right that is being sought to be protected is the tenure of office of the Chairman and members of the Committee of the Sixth Plaintiff. The persons who have direct and immediate interests are the First to Fifth Plaintiffs. The allegation is that their right to hold office has been breached when the Minister unilaterally replaced them with new Chairman and members. In my view they are the persons aggrieved by the decision and entitled to challenge it.

13. As to the Sixth Plaintiff, it is the subject Authority whose composition of the Board is being questioned. Given this I am of the view that it has no direct and immediate interest which must be protected. It should be removed as a Plaintiff. For these reasons, it is not necessary to make a finding that the proceedings were unauthorised by the Committee of the Sixth Plaintiff. On the other hand, Mr. Kombri's engagement as counsel for the Sixth Plaintiff ceases on the removal of the Sixth Plaintiff and his further participation and submissions will not be considered.

14. This leaves the First to Fifth Plaintiffs remaining in these proceedings. Mr. Soi on behalf of the Defendants raises the same objection as Mr. Kombri on behalf of the Sixth Plaintiff. He moves on a further notice of motion filed on 23rd December 2015 for dismissal of these proceedings on the ground that the Plaintiffs are suing in their representative capacity. As there is no evidence that they have been authorised by landowners to do so, they lacked the authority to represent the landowners.

15. I am of the view that the Plaintiffs are not suing in their personal capacity and as "representatives" of the landowners but as "elected representatives" of various land groups within the project area. Given this it is not necessary for them to obtain specific authority from the landowners to commence these proceedings. As noted, they commenced these proceedings to challenge their removal as Chairman and members of the Committee of the Authority. I am satisfied as elected representatives the Plaintiffs have the authority to institute these proceedings and they are properly before this Court. The objection is misconceived and dismissed.

16. The second ground of objection is based on the doctrine of res judicata. Mr. Soi argues that the same parties were involved in an earlier proceeding reference OS No. 232 of 2015 and the same issues were raised and determined. The presiding Judge Kandakasi J struck out the proceedings and directed that the dispute be referred to the Minister to resolve. His Honour further ordered that in the event that the matter is not resolved, the Plaintiffs may recommence proceedings by way of judicial review. Without exhausting this process, the Plaintiffs commenced these proceedings.

17. There are two points raised by this ground. First is the issue of res judicata and secondly, the issue of settlement. As to the first issue, there is no evidence that Kandakasi J decided the issues in this case. Further, from my reading of the order, it states that the proceedings are struck out and the Minister is to resolve the conflict. As it turned out, it did not. Thus, whilst the parties are the same the issues as to the revocation of the Plaintiffs as Chairman and members of the Committee and appointment of Mr. Tigi and others remained unresolved. For these reasons, I am not satisfied that they are res judicata. As to the issue of resolution by the Minister, I am of the view that its determination will depend on the main issue of Minister's power to appoint and revoke Chairman and members of the Authority. I now turn to deal with this question.

Ultra vires

18. Mr. Harry on behalf of the First, Second, Third and Fifth Plaintiffs submits that the Minister acted without power to revoke the appointment of the Plaintiffs and in retrospect appoint Mr. Tigi and others as Chairman and members of the Committee. He argues that, that power is conferred on Incorporated Land Group ("ILG") Chairman pursuant to sections 5 (2) and 9 of the MLLGSPA Constitution in an election conducted by officers of the Second Defendant on 30th October 2014.

19. The election was conducted in accordance with a letter of notification dated 26th May 2014 issued by the Minister to the respective appointing authorities and pursuant to a Court order of 10th August 2014. The Plaintiffs' names were then submitted to Mr. Eric Yawas, President of Hulia RLLG for presenting to the Minister for his notification but he refused. As a result, officers of the Second Defendant submitted the Plaintiffs' names directly to the Minister. On 20th November 2014 the Minister endorsed the names of the Plaintiffs. On 25th November of the same year the Plaintiffs were sworn into office at a meeting organised by the officers of the Second Defendant at Airways Hotel in Port Moresby. The First Plaintiff was elected Chairman of the Committee in the same meeting.

20. Mr. Saroa appearing for the Fourth Plaintiff supports the other Plaintiffs' submissions and adds that the heart of the dispute lies in section 45 of the LLGA Act, 1997. This is the provision which the Minister purportedly exercised power to revoke the Plaintiffs' appointments and replaced them with Mr. Tigi's group. He submits, however, if this provision is closely considered, it does not confer power on the Minister to revoke and/or appoint members of the Committee including the Chairman. This power is found elsewhere and as contended by the other Plaintiffs, it is found in the respective land groups through an election process under sections 5 (2) and 9 of the Constitution. Thus, the Minister lacked power.

21. Mr. Soi relies on the LLGA Act, 1997 the Proclamation and the Constitution of the Authority and submits that these documents collectively confer power on the Minister to appoint and revoke appointments of Chairman and members of the Board of the Authority. He submits that section 42 of the LLGA Act, 1997 provides that the Head of State, acting on advice may, by Proclamation, establish a Local-level Government Special Purpose Authority. Section 45 provides for a management committee and under Sub-section (4), the membership, manner of appointment and terms and conditions of appointment of members of the management committee are as prescribed. The prescription referred to in Sub-section (4) refers to subordinate legislations, namely the Proclamation and Constitution of the Authority.

22. In respect of the appointment of the landowner representatives, he submits that based on section 5 (2) (i) to (iv) of the Constitution, the process is as follows; they are elected by their respective land groups. Their names are submitted to the Hulia RLLG for consideration. If in order, it endorses the nominees and directs the President of Hulia RLLG to convey its decision in writing to the Minister. The notice shall be accompanied by documentation of the respective appointing authorities that appointed them. Upon receipt of the notice and documentation, the Minister publishes the names of the appointees on the notice board or as preferred by public office holders, in the National Gazette under section 5 (3) (b) of the Constitution.

23. In this case the appointment of the Plaintiffs was flawed. First, the meeting which resulted in the election of the Plaintiffs as landowner representatives was not attended by all the landowners. Secondly, the notice did not have accompanying documents. Thirdly and significantly, the nominees were rejected by the Hulia RLLG. Fourthly, despite this the Plaintiffs' names were submitted in a report to the Minister by officers of the Second Defendant. The report recommended their appointment. In the end, the Plaintiffs have not come to Court with clean hands and the application for judicial review must fail.

24. It is common ground between the parties that the pursuant to section 44 of the LLGA Act, 1997 the Authority is a corporation and governed by a Constitution. Section 5 of the Constitution provides for membership of the Authority. Contrary to the submissions of counsel that the landowner representatives are elected by the various land groups within the project area, they are not. They are nominated. And there is a world of difference between the two; one requires a vote to be taken and the other, an invitation. In the case of the three landowner representatives of Homa, Paua and Paguale Yalanda local areas, they are nominated by their respective ILG Chairman. As to the representatives of land groups of Homa Paua People's Association and Aporo' Urri Resource Owners Association, they are also nominated by the Associations and in the case of West Moran ILG, the ILG Chairman nominates the person. (Emphasis added).

25. It would seem that except for the landowner representatives from the named Associations, the rest of the landowner representatives are nominated by respective ILG Chairman. If that is the case then there is no need for an election to be held by the landowners within each ILG to elect them (nominees). All it requires is for each ILG Chairman to nominate a member of the ILG to represent it on the Committee of the Authority.

26. With regard to the landowner representatives from the named Associations, while section 5 (2) (ii) and (iv) does not expressly state that each is nominated by the Chairman of each Association, I do not think that it is envisaged by the drafters that the selection criteria be different from the selection criteria of nominees for the ILGs. This is because if an election is required, it would cost a lot time and money.

27. Up to this point, the landowner representatives are nominees. Thus, I find the submission that landowner representatives are elected by the land groups misconceived. This is the first flaw. As nominees, the question then is, how are they confirmed as members of the Board? The answer is not that clear. According to Sub-section (3) (b) of section 5, they "shall have their names published by notice in the prescribed form on the Notice Board by the Minister following notification in accordance with the procedure in Sub-Section (4) to him or her." Sub-Section (4) states "Notification of appointees shall be in writing to the Minister given by the Head of Hulia Rural Local-level Government. They shall include the manner and proceedings and proper documentation of respective organisations that appointed them." (Emphasis added).

28. I am of the view that before the Minister publishes the names of the nominees he must receive notification in writing of the appointees from the President of Hulia RLLG. Notice the use of the expression "appointees" in Sub-section (4) as opposed to "nominated" in Sub-section (2) of section 5. In my view it can be inferred from the use of the different expressions that the status of a nominee changes when the President of RLLG notifies the Minister. At this point there is now a formal recognition of the nominees as persons eligible to take office as members of the Committee by the President of the Hulia RLLG.

29. However, as I said, the process of confirming the nominees is vague because section 45 of the LLGA Act, 1997, section 5 of the Constitution and Proclamation do not say if the confirmation of nominees is by the Hulia RLLG or by the President of Hulia RLLG. If it is by the Hulia RLLG, they do not say if the names of the nominees must be presented for a vote to be taken by the Assembly to confirm the appointment of the nominees. Similarly, they do not say that upon receipt of the nominees from the respective Chairman of the ILGs, the President may confirm the appointment of the nominees.

30. Furthermore, they do not say that the Hulia RLLG or President may recommend the appointees to the Minister to appoint, a process similar to the one used to appoint and revoke appointments of Departmental Heads and Heads of Statutory Bodies where the Head of State or the Minister, acting on, and in accordance with the advice of the National Executive Council, may appoint or revoke appointments of Departmental Heads and Heads of Statutory Bodies.

31. As far as I am concerned, the lack of clarity or absence of a clear procedure for confirming the nominees has created this confusion and controversy. This is an unsatisfactory state of affair and shows that there is an urgent need for the drafters of these legal documents to review them, and where appropriate, make amendments to clarify the law in relation to appointment and/or revocation of appointment of landowner representatives to the Board of the Authority. Preferably, they must spell out in clear terms the role of the RLLG and the Head in the whole process of appointment of the Committee members.

32. For now, I can only give an opinion based on what is placed before me. Based on section 5(4) of the Constitution which states that "Notification of appointees shall be in writing to the Minister given by the Head of Hulia Rural Local-level Government.........." section 45 (2) of the LLGA Act, 1997 and the Proclamation which states that the Authority shall work in partnership with the Hulia RLLG, I am of the view that it is open to the Chairman of each ILG and Association to submit their nominee to Hulia RLLG for consideration and approval. Then, it is the President who shall notify the Minister of the decision. In considering the nominees, the Hulia RLLG is assisted by the qualifications set out in section 9 (1) of the Constitution. One of them is that the nominee must be a member of an ILG in the project area (PDL 5). This is important because the landowners can only be well represented at the Committee level if they are represented by one of their own: see section 9 (1) (c) of the Constitution.

33. The final stage is the publication of the names of the appointees. Again, the LLGA Act, 1997, the Constitution and the Proclamation do not state that the Minister acting on, and in accordance with, the advice of the Hulia RLLG or the President shall appoint the members of the Committee. The lack of clarity is compounded by the Minister's role being not clearly defined. The Constitution only states that upon receipt of the notification from the President, the Minister shall publish the names of the appointees in a notice on the Notice Board at the District Office.

34. In my view the reference to the Minister determining the details of, amongst things, management of the Authority in clause (m) of the Proclamation applies to the establishment of the management of Authority and not the appointment of the members. I say this because as the Authority is established to work in partnership with Hulia RLLG, the publication of the names of the appointees by the Minister signifies that they have the support of the Minister and the Minister's role is advisory in nature. On the other hand, the power to appoint members of the Committee is conferred on the Hulia RLLG. For these reasons, I come to the conclusion that the Minister does not have the requisite power to appoint and/or revoke appointments of members of the Committee. This is a significant flaw.

35. It is common ground that the names of the Plaintiffs were submitted to the President of Hulia RLLG. Mr. Yawas rejected them. While there is no evidence that the Hulia RLLG has approved them this is where the appointment process should have stopped. Instead the officers of the Second Defendant went ahead and submitted the names to the Minister. The officers of the Second Defendant have no authority to do that and acted in breach of section 5 (4) (above). This is the second flaw. Then acting on this list of names, the Minister "signed to confirm" them. This is the third flaw.

36. The fourth flaw and a significant one is that there is no evidence that Mr. Tigi is a nominee of the Chairman of North West Moran ILG which is one of the recognised land groups under section 5 (2) (iii) of the Constitution. There is no mention of Pai Parapia Resource Owners in the Constitution so his eligibility to be appointed as member and subsequently Chairman of the Committee is questionable. The next flaw is that there is no evidence that Paul Yawe, the landowner representative of Aporo'Urri Resource Owners Association was nominated by the Chairman of the Association.

37. Finally, in an attempt to legitimise and give weight to the appointment of Mr. Tigi and others, the Minister had their names published in the National Gazette [N0 G274] on 22nd April 2015. Contrary to Mr. Soi's submission I find that there is no requirement to publish the names in the National Gazette under the LLGA Act, 1997 or the Constitution. In my view section 5 (3) (b) of the Constitution is very clear. The only requirement is that their names must be published in a notice on the Notice Board by the Minister. This is to unable landowners in the project area easy access to the notice of appointment. This is another flaw.

38. The purpose of judicial review is for the Court to review the decision making process to ascertain, amongst other things, whether the decision maker or decision making body acted within its powers or did not abuse them. In this case I find the flaws in the entire decision making process of appointment of the landowner representatives serious and grave. I further find that they render the appointments of the Plaintiffs and in retrospect their revocation and appointment of Mr. Tigi as Chairman and Mr. Yawe as member representing North West Moran ILG and Aporo U'rri Resource Owners Association respectively, null and void. In my view their appointments and/or revocation must not stand. The final point to make is that in its supervisory role, the Court must ensure that any error or abuse of power by the decision maker or decision making authority must be corrected. In this case I am of the view that the appointments of landowner representatives must be re-done and they must be according to the procedure which I will summarise shortly.

Setting Aside of Interim Injunction

39. But now I turn to address the Defendants' application to set aside the interim injunction. The Defendants move on the further notice of motion to set aside the interim injunction of 22nd December 2015. A summary of the grounds in support of the application are:

1. Change in circumstances since the grant of the injunction. This is based on the appointments of Mr. Tigi and others as Chairman and members respectively and that they are now in control of the management and affairs of the Authority.

2. Conduct of the parties. Since the grant of the interim injunction the Defendants, Mr. Tigi and others have complied with it. On the other hand the Plaintiffs are guilty of derailing the election process. Further, the Plaintiffs obtained the interim injunction against unnamed Defendants.

3. Previously undisclosed facts. At the time when the Plaintiffs applied for the interim injunction, they did not disclose all the material facts to the Court. They are, the Plaintiffs were no longer Chairman and members of the Board as they are removed.

4. Interim injunction was granted on an erroneous legal basis. The Plaintiffs did not have the authority of the landowners to institute these proceedings and then obtained the interim injunction.

5. The Court was misled into granting the interim injunction. At the time the Plaintiffs applied for the interim injunction, they were already removed as Chairman and members of the Committee by the Minister and they did not draw this to the Court's notice.

40. At the time the Court granted the interim injunction, it was satisfied that there were serious issues to be tried and the balance of convenience favoured the making of such an order. The order was to stop further use of funds of the Authority held at Bank of South Pacific Limited pending further order. Dued to the urgency of the matter, it was made ex parte. The Court has now had the benefit of hearing the parties particularly, the Defendants. As to the ground on change in circumstances, it does not apply because it is relevant to an application to set aside a perfected order/interim injunction.

41. As to the rest of the grounds the Plaintiffs assert that they constitute the legitimate Committee of the Authority while Mr. Tigi and others assert to the contrary. The management and control of the Authority including control and use of funds is dependent on the question of legitimate Committee. When this question is resolved, it will pave the way for the Committee to legitimately exercise power and control of the Authority including control and use of funds. At the moment, the order does not restrain Mr. Tigi's group from controlling and managing the Authority. This was considered by the Court at the time it granted the injunction and it is wrong for the Defendants to suggest that the Court failed to consider it. The order only restrained control and use of funds of the Authority.

42. In the preceding pages of this judgment, the Court embarked on resolving the question of legitimate Committee. Given the lengthy submissions of parties and the vagueness or absence of clear procedure on this issue, it is quite clear that the determination of the question is and was not one that is and was clear and straight forward. This demonstrates that there is and was a serious issue to be tried in this case.

43. As to the conduct of the parties, I am unable to see why this should be an issue. As correctly pointed out by the Defendants, since the grant of the interim injunction all those to whom the order was directed at, complied. That should and ought to be the case. As to the Plaintiffs' conduct, given the difficulty in trying to determine the process of appointment and revocation of members of the Committee as pointed out at [28] to [34] above, I am not satisfied that they are and were guilty of derailing the appointment process. I find that they are and were seeking answers to the cause of the dispute.

44. As to the ground on the Plaintiffs obtaining the interim injunction against unnamed Defendants, my short response is this Mr. Tigi has an interest in this matter and should have immediately applied to join as a Defendant after the making of the order. If he was joined, he would have responded to the application to extend the interim injunction. He did not. Instead he rode on the back of the Authority claiming that he was the duly appointed Chairman and on that authority, opposed the application for judicial review. In my view he allowed an opportunity to slip away and he cannot now complain that the order was not expressly directed at him. In any case, he is and was aware of the order and made his position clearly known by seeking to set it aside but failed.

45. The ground on the Plaintiffs' failure to disclose all material facts at the time they applied for the interim injunction in relation to being no longer Chairman and members of the Committee is misconceived for the reasons stated at [41] and [42] above. In relation to the ground that the interim injunction was granted on an erroneous legal basis, it is misconceived and dismissed for the reasons given at [15] above. Finally, I am not satisfied that the Court was misled into granting the interim injunction for the reasons given at [41] and [42] above.

Conclusion

46. I found that the revocation and appointments of the concerned parties were flawed and must be re-done. It takes me back to [17] above on the point that the dispute may be resolved by the Minister. As I also found the start of the appointment process does not involve an election. In view of this finding it does not require the assistance of the Minister and officers of the Second Defendant to organise an election for each land group to elect their nominee. It would follow that referring this dispute to the Minister will be without legal basis.

47. I now return to the last point and summarise the process as follows; the dispute must go back to each ILG and Association. Each Chairman must nominate one person amongst its members to represent the land group on the Committee and submit to the Hulia RLLG for consideration and approval. The nomination must be in writing but an election is not required. After approval, the President shall submit the names of the appointees to the Minister to publish in a notice on the Notice Board at the District Office. The list of names of appointees must be submitted with each letter of nomination from the ILG Chairman and resolution of the Hulia RLLG Assembly. There is no need to have the names gazetted because it is not a requirement under the LLGA Act, 1997 or the Constitution.

48. Finally, these findings do not apply to the other members of the Committee under section 5 (2) (vii), (viii), (ix), (x) and (xi) of the Constitution. Further, these findings are sufficient to uphold in part the application for judicial review and it is not necessary to consider the other grounds of review set out at [8] above.

49. With regard to the interim injunction, I should say this. The primary purpose of the funds is to fund "impact" projects and establishment of local businesses in the project area. I gather that impact projects are supposed to have an immediate effect on lives of people in the area in terms of improving their standard of living, for instance, building a road connecting remote villages in the project area to the nearest town or building a health centre for remote villages in the area.

50. As was the case in the Sixth Plaintiff's application for an order to have access to some funds, there is absolutely no evidence to establish that funds have been and will be used for projects of this nature or creation of local businesses in the area. I am looking for and there is not one aorta of evidence in the form of a report of a project that is currently undertaken by the Authority and the Authority will need funds to settle the contractor's costs to complete it. Thus, this Court does not know if funds have been spent according to the Authority's goals and plans and also the National Government key policies. Ultimately, the question that has not been satisfactorily explained is the whether the funds have been used to benefit the landowners.

51. On the other hand, there is and was evidence that Mr. Tigi's group have incurred debts not directly related to funding of impact projects and creation of local businesses in the project area. These debts are and were incurred in defending these proceedings such as lawyers' legal costs, hire of motor vehicles, accommodation and living expenses in Port Moresby. These debts run into thousands of kina. In my view these costs have no direct connection to bringing development to the "little people" back at home. Moreover, both sides have not placed before the Court evidence of disbursements of funds for projects and businesses to justify further release of funds. If the interim injunction is set aside, judging by the trend on the use of funds, landowners will miss out on much needed funds to bring development to the area. For these reasons, the interim injunction will continue until a proper Committee is put in place so that it can start putting the funds to proper use.

Order

52. The orders I propose to issue are as follows:

1. The application for judicial review is upheld in part.

2. The order sought to declare the revocation of appointment of the First, Second, Third, Fourth and Fifth Plaintiffs as Chairman and members of the Management Committee of Moran Local-level Government Special Purpose Authority respectively, null and void, is refused.

3. The order sought to declare the appointment of the First, Second, Third, Fourth and Fifth Plaintiffs as Chairman and members of the Management Committee of Moran Local-level Government Special Purpose Authority respectively, as valid, is refused.

4. An order in the nature of declaration that the appointments of Mr. Gibson Tigi representing North West Moran Incorporated Land Group and Mr. Paul Yawe representing the Aporo'Urri Resource Owners Association on the Management Committee of Moran Local-level Government Special Purpose Authority as Chairman and member respectively, are null and void, and of no effect.

5. An order in the nature of certiorari bringing into this Honourable Court and quashing the appointments of Mr. Gibson Tigi representing North West Moran Incorporated Land Group and Mr. Paul Yawe representing the Aporo'Urri Resource Owners Association on the Management Committee of Moran Local-level Government Special Purpose Authority as Chairman and member respectively.

6. An order in the nature of mandamus directing the Chairman of Homa Paua People's Association, Chairman of North West Moran Incorporated Land Group and Chairman of Aporo' Urri Resource Owners Association, Chairman of Homa Incorporated Land Group, Paua Incorporated Land Group and Paguale Yalanda Incorporated Land Group to submit their nominees to the Hulia Rural Local-level Government within twenty-one days of this order.

7. Thereafter, an order in the nature of mandamus directing the Hulia Rural Local-level Government to consider the list of nominees and if in order, approve and the President shall submit the appointees to the Minister within a further fourteen days.

8. Thereafter, an order in the nature of mandamus directing the Minister to have the names of the appointees published by notice in the prescribed form on the Notice Board at a District Office within the project area (PDL5) within a further fourteen days.

9. The interim injunction of 22nd December 2015 is further extended until further order.

10. The matter shall return to Court on Tuesday 31st May 2016 at 9:30 am to confirm compliance with terms 6, 7 and 8 of this order and/ or discharge of the interim injunction.

11. Each party shall pay its own costs.

12. Time shall be abridged.

Judgment and Orders accordingly,

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Stevens Lawyers: Lawyers for the First, Second, Third, Fifth and Sixth Plaintiffs
Nelson Lawyers: Lawyers for the Fourth Plaintiff
Kombri & Associates: Lawyers for the Sixth Plaintiff
Soi & Associates: Lawyers for the Defendants