Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Walawi v Isifu [2019] PGNC 272; N8034 (30 September 2019)

N8034

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. JR NO. 600 of 2018

BETWEEN
ANGAI WALAWI, PEPERAYA KUPALI, STEVEN IPULE, HARRY AYUWALE, IPANDA DELAKO
Plaintiffs

AND
HON. KEVIN ISIFU as the Minister for Department of Inter Government Relations
First Defendant

AND
ANDY HAMAGA, ENDORSE AYAGALI, EGA YALE, IGIBE TOGORIAGO, LUYABE URUBU, JOHN KOLOMA, WILLIE WAGIMA, TOM PAKATA, ERIC HAROLI & AYABE YULUPE
Second Defendants

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
KOMO RURAL LOCAL-LEVEL GOVERNMENT
Fourth Defendant

Waigani: Makail, J
2019: 6^th & 30^th September

JUDICIAL REVIEW – Review of Ministerial decision – Decision to endorse for appointment, landowner group nominees as members of Management Board of Special Purpose Authority – Procedure for appointment considered – Constitution of Special Purpose Authority – Sections 5 and 7

Cases cited:

Angai Walawi & Ors v. Hon. Kevin Isifu & Ors: OS (JR) No 600 of 2018 (Unnumbered & Unreported Judgment of 16^th August 2019 per Makail J)
Anthony Hamaka & Ors v. Hon. Leo Dion & Ors (2016) N6249

Counsel:

Mr. M. Gimaia, for Plaintiffs
No appearance, for First & Third Defendants
Mr. J. Haiara, for Second Defendants
No appearance, for Fourth Defendant

JUDGMENT

30^th September, 2019

1. MAKAIL J: This is an application for judicial review of the decision of the first defendant to endorse for appointment, members of the Management Board of the Hides PDL7 Special Purpose Authority (“Authority”). It is alleged by the plaintiffs that the endorsement by the first defendant of the second defendants as members of the Management Board was in breach of Sections 5 and 7 of the Authority’s Constitution. In the converse, the plaintiffs seek appointment as members of the Management Board on the ground that they were duly nominated by their respective landowner groups in accordance with Sections 5 and 7 of the Authority’s Constitution.

2. At the heart of the dispute are meetings held by the plaintiffs and second defendants to nominate their respective landowner representatives to the Management Board. The plaintiff said that they were nominated in a meeting held at Nogoli on 30^th December 2016 while the second defendants said that they were nominated at a series of meetings held between 10^th and 13^th April 2017. Both sides claimed that each meeting was called and conducted in accordance with Section 7 of the Authority’s Constitution. So what does Section 7 say?

3 Section 7 of the Authority’s Constitution states:

“MANNER OF APPOINTMENT OF THE BOARD

(1) The Minister shall notify the nominating bodies, in writing, to nominate their representatives.

(2) Nominating bodies under Section 5(2)(a), (b), (c), (d), (e), (f) and (g) shall nominate their representatives with the oversight of the Department.

(3) Nominations from the respective nominating bodies shall be submitted to the Komo Rural Local-level Government Assembly.

(4) The names of the nominees of the respective nominating bodies, including the names of the members appointed under Section 5(2)(h) shall be sent, in writing, to the Minister by the President of the Komo Rural LLG.

(5) The minuted manner and proceedings of the respective body that nominated members under Section 5(2)(a), (b), (c), (d), (e), (f), (g) and (h) shall be submitted to the Minister by the President of the Komo Rural Local-level Government.

(6) The Minister shall endorse for appointment the nominees list provided by the President of the Komo Rural LLG subject to Subsection (5).

(7) All members of the Board endorsed for appointment by the Minister shall have their names published in the National Gazette”.

4. Section 7 was earlier considered by the Court. In the Court’s ruling of 16^th August 2019 on the question of whether it adequately provided for the procedure for calling and conducting of a meeting by landowner groups, the following was noted:

“2. According to Section 5 of the Authority’s Constitution, the Management Board is comprised of 15 members. According to Section 7 of the Authority’s Constitution, seven of them are nominated by named landowner groups and submitted to the Komo Rural Local-level Government (“KRLLG”) for forwarding to the first defendant to endorse for appointment.

3. The plaintiffs claimed that seven of the members who are representatives of landowner groups were not elected in a meeting properly constituted and convened pursuant to Section 7 of the Authority’s Constitution.

4. At the commencement of trial on 24^th April 2019 it was apparently unclear as to how the seven members of the named landowner groups were to be nominated and parties were invited to address the question of adequacy of procedure for calling and conducting a meeting prior to the determination of the substantive issue, it being whether the endorsement for appointment of the second defendants by the first defendant was legal having regard to the meetings held by landowner groups under Section 7 of the Authority’s Constitution.”

5. The Court held at para. 8 of the judgment that while Sections 5 and 7 of the Authority’s Constitution did not sufficiently set out the procedure:

“[t]here was a vague reference to Minister notifying the “nominating bodies, in writing, to nominate their representatives” and secondly, there is a vague reference to the nomination of the nominees to be “with the oversight of the Department”. For those reasons, the matter was allowed to proceed further for the parties to tender evidence to establish whether the Minister did issue a notice to the nominating bodies (landowner groups) to nominate a representative under Section 7(1) and if he did, whether the notice that he issued set out the manner in which a meeting of the nominating bodies (landowner groups) should be held to appoint a representative. Secondly, if there is evidence to establish that the meetings held by either party was with the oversight of the Department”.

Notice by Minister to Nominating Bodies (Landowner Groups)

6. Is there evidence of a Notice by the Minister to the nominating bodies (landowner groups) to each nominate a representative under Section 7(1)? The answer is yes. The evidence may be found in a bundle of documents marked as annexure “SI1” to an affidavit of Steven Ipule filed 30^th August 2019. It will be noted from annexure “SI1” that, it comprises of four separate letters by the Minister to landowner groups dated 12^th December 2016 requesting each of them to nominate a representative. These are:

1. Timalia Ganhula

2. Pipeline Segment

3. Tawena Marako

4. Hides PDL 07 Landowner Association

Details of Notice by Minister

7. Do each notice set out the details of calling and conduct of a meeting of a nominating body (landowner group)? The answer is no. This is because except for the Minister giving the landowner groups three weeks to nominate their representatives, there is no information in relation to the following requisites of a meeting:

1. Who to call meeting.

2. Venue of meeting.

3. Date of meeting.

4. Time of meeting.

5. Agenda of meeting.

6. Who should attend meeting.

Meetings held with the oversight of the Department

8. Was the meeting held with the oversight of the Department? Firstly, the Department referred to by the Minister in the notice is the Department of Inter-Governmental Affairs. Secondly, the term “oversight” is not defined or explained by the Minister. Is it a physical presence of officers from the Department during the meeting and nomination of a representative by the landowner group or is it intended that officers from the Department may be consulted, in writing or by telephone, during the meeting and nomination exercise? It leaves open the inference that it can be either or both propositions.

Effect of Notice of Meeting and Oversight of the Department

9. As to the notice of meeting, it would appear that those responsible for drafting the Authority’s Constitution failed or overlooked the possibility of disagreements between the members of each landowner group and did not put in place a detailed procedure for calling and conduct of a meeting. Even the notice by the Minister does not set out those matters identified [7] above. Given this, it must be found that the meetings held by the second defendants between 10^th and 13^th April 2017 not be possibly held under Section 7(1) & (2) of the Authority’s Constitution. Similarly, it must be found that the meeting held by the plaintiffs at Nogoli on 30^th December 2016 could not be possibly held under Section 7(1) & (2) of the Authority’s Constitution.

10. As to the oversight by the Department, if the oversight is meant to be supervision by officers of the Department by telephone, or in writing, or physically being present during the nomination, there is no evidence by both sides that either was done.

11. The net effect of these findings is that, the nominations of the plaintiffs and second defendants are void ab initio. Putting it differently, there is no evidence of a prescribed procedure for calling and conducting a meeting upon which the Court can find that the meeting held by either party complied with it. Thus, each landowner representative’s nomination could not be held as validly made. For these reasons, each party’s claim to an entitlement to the membership of the Management Board must fail.

Appropriate Remedy

12. The next question is the appropriate order to make to ensure that the landowner groups have representatives on the Management Board. The plaintiffs put forward two options.

12.1. Consistent with what the Court ordered in Anthony Hamaka & Ors v. Hon. Leo Dion & Ors (2016) N6249, directions should be issued by the Court to facilitate a meeting for each respective landowner group to nominate its representative.

12.2. The Court refers the matter to the Minister to reissue notices to the respective landowner groups to call and conduct meetings to nominate their representatives.

13. The second defendants put forward three options:

13.1. They remain as members of the Management Board and the Court gives directions on how landowner groups should call and conduct meetings to nominate their respective representatives.

13.2. They remain as members of the Management Board and parties liaise with the Minister to reissue notices to the respective landowner groups to call and conduct meetings to nominate their representatives.

13.3. The matter be adjourned and parties explore the option of referring it to the Mediation and Alternative Dispute Resolution (“ADR”) Track for resolution.

14. Where the nomination of the plaintiffs and second defendants has been found to be void from the start, the plaintiff’s proposal that they be declared as duly appointed representatives of the landowner groups and consequently, members of the Management Board is untenable. Similarly, the second defendants’ proposal that they remain as members of the Management Board is untenable.

15. Secondly, the second defendants’ proposal that the matter be adjourned and parties explore the option of referring the matter to mediation and ADR is belated and will further delay the resolution of the dispute.

16. Thirdly, the facts of this case defer from the Anthony Hamaga’s case because this case deals with the appointment of landowner representatives to sit on the Management Board where their nominations were made in the absence of an established procedure for such nominations. In the earlier case, the Court found that the Chairman of each landowner group was authorised to nominate a landowner representative to sit on the Management Board, subject to, the approval by the Local-level Government and submission by the President of the LLG to the Minister for final approval. This procedure was not observed and the parties were ordered to comply with it. For this reason, it is inappropriate for the Court to outline the procedure for the nomination of the landowner representatives.

17. What the Court can and will do is to order that the matter be referred to the Minister to give further directions for the nomination of landowner representatives, this time taking into account the matters outlined by the Court at [7] above.

Order

18. The orders sought to declare the membership of the second defendants on the Management Board of the Hides PDL 7 Special Purpose Authority null and void are granted. Secondly, the orders sought to have the plaintiffs declared members of the Management Board of Hides PDL 7 Special Purpose Authority are refused. A further order that the Minister give directions for the calling and conduct of meeting of respective landowner groups at a venue, on a date and time, to be fixed. Finally, as the plaintiffs have successfully established one aspect of their claim and failed in the other, each party will bear its own costs of the proceedings.
Judgment and orders accordingly,
_____________________________________________________________
Liria Lawyers : Lawyers for Plaintiffs
Haiara’s Legal Practice Lawyers: Lawyers for Second Defendants
Solicitor General : Lawyers for First & Third Defendants
Daniel Kop Lawyers : Lawyers for Fourth Defendant