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Hamaga v Niningi [2021] PGNC 287; N9083 (2 June 2021)

N9083

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 13 OF 2021

ANDY HAMAGA AS INTERIM CHAIRMAN OF PDL 7 HIDES SPECIAL PURPOSE AUTHORITY
Plaintiff

AND:
HON. PILA NININGI AS MINISTER FOR INTER GOVERNMENTAL RELATIONS
First Defendant

AND:
STEVEN IPULE AS CHAIRMAN ELECT FOR PDL 7 HIDES SPECIAL PURPOSE AUTHORITY
Second Defendant

AND:
CHARLES HALUJA AS PRESIDENT OF KOMO ILL ASSEMBLY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 13^th May, 02^nd June

PRACTICE & PROCEDURE – Originating Summons – Application for Leave for Judicial Review – Statement in support – Standing – Delay – Internal Avenues exhaustion – arguable basis of – Issue Res judicata – No error in procedure – Materials relied insufficient – balance not discharged – Motion refused – Cost follow event.

Cases Cited:

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906

Takori v Yagari [2007] PGSC 48; SC 905

Counsel:

T. Tingnni, for Plaintiff
G. Geita, for Defendant

RULING

02^nd June, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons dated the 23^rd February 2021 where he pleads for leave for judicial review. This is against the decisions and directives of the First and Second Defendants in respect of the call for meeting for nomination of the representatives to the Management Board of Hides PDL 7 Special purpose Authority.
   
2. The Statement in support filed 23^rd February 2021 pleads that the Plaintiff is the current legitimate interim Chairman of the Management Board of the Hides PDL 7 Special purpose Authority in Komo ILG Hela Province. He has been replaced with the third defendant on the 05^th February 2021 without his knowledge and now the subject dispute.
   
3. That leave be granted to him to apply to the National Court pursuant to Order 16 rule 3. Because the circumstances are that the decision is based on the direction of the first and second defendants in relation to the calling for nomination of the Board Members of Hides PDL 7 HSPA pursuant to the letter dated 14^th January 2021 and subsequently the nomination of the third defendant as Chairman of the board with other board members of PDL 7 HSPA on the 05^th February 2021.
   
4. These purported decisions and the directions and the subsequent nomination were followed from the Judicial court proceedings in both National and Supreme Court decisions ordering the Minister (First Defendant) to give directions for the calling and conduct of meeting with respective landowner groups of PDL 7. The Supreme Court confirmed the National Court decision as mentioned in relation to the matters described as OS (JR) No. 600 of 2018; Angai Walawi & ors v Andy Hamaga & ors and SCM No. 24 of 2019, Andy Hamaga v Angai Walawi & ors. That is the appeal against was dismissed and the decision taken by the National Court was confirmed.
   
5. Following the decisions in those matters the Minister or the First Defendant issued directions by way of a letter dated the 14^th January 2021 to Komo LLG President Mr. Charles Aluja, the second defendant to call a meeting to nominate the landowner representatives to the Management Board of PDL 7 HSPA. This was implementing what was adjudged by the Court as the position in law in respect of the matter.
   
6. On the 05^th February 2021 the Komo LLG through the decision of the Second defendant held a meeting in Komo and subsequently nominated the third defendant as Chairman of the PDL 7 HSPA along with other board Members based on the directions of the First Defendant.
   
7. The directions for call of the meeting to nominate was held during the time and period of clan vetting to identify the true landowners and to address on other pending issues by Mineral Resources Development Corporation (MRDC) and the Department of Petroleum & Energy.
   
8. What can be deduced from this pleading is a process that was described in OS (JR) No. 600 of 2018; Angai Walawi & ors v Andy Hamaga & ors and confirmed in SCM No. 24 of 2019, Andy Hamaga v Angai Walawi & ors. Particulars of which can be seen as annexure “C” in the affidavit relied of Andy Hamaga sworn 10^th May 2021, relevantly the Supreme Court points, “However, in our view, having regard to the evidence before the National Court, his Honour did not err in his interpretation and application of section 7. His honour engaged in a proper process of interpretation and did not engage in judicial legislation.”
   
9. That is what has happened here by the decisions of the Court which have been implemented and confirmed by the pleading. And that is confirmed by the Supreme Court when it concluded, “His Honour did not err in his interpretation and application of the provisions of the relevant constitution or in the exercise of discretion as to the relief granted to the successful applicants for judicial review. The appeal will be dismissed with costs.”
   
10. In my view the evidence is clearly consistent with the National and the Supreme Courts view of the matter. A process has been settled by the decisions of the Court which have been implemented and there is no room for the plaintiff to contend that he has been affected by that decision illegally prima facie and so an arguable cause opening the door for leave. Because what has happened is the carrying into effect of the Courts interpretation in the running of PDL 7 election of its office bearers and what is required in so discharging. It has already seen the Judgment of the Supreme Court in the way section 7 of the Constitution is interpreted. And this Court will follow that interpretation, as that is of the Supreme Court. Its implementation sees no standing demonstrated by the plaintiff. Nor does it see it as arguable to bring the matter forward on that leg. Internal process and procedure have been illuminated by the decision of the Supreme Court and that rests any arguments on the matter. Judicial review is about procedure: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) and here it has been settled by the Supreme Court in its interpretation of section 7 of that Constitution.
    
11. It means for all intent and purposes it is not a new matter de nova and amounts to res Judicata as in Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008). The concept of res judicata was discussed and that has seen the light there. It has been determined by a court of competent jurisdiction on its own merits. And the same is pursued here, because the plaintiff has come now after the decision of this court. That amounts to abuse of the process and the court will protect its process from the same. A court of competent jurisdiction has decided which must be protected. It has gone to the Supreme Court and will not be visited here again.
    
12. The other side of the balance is that dismissal of the entire proceedings denotes denying the litigant from the judgement seat. Here I have closely and carefully weighed out the facts in particular, is there room notably the Supreme Court in Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 (28^th February 2007), states, “our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.” The application here must be carefully scrutinized with the evidence. And in so doing it is my view that the evidence does not mount up to the required balance to call that leave is due as pleaded.
    
13. Because the matter has been determined by this same court and further on appeal to the Supreme Court set out above. There is no room to open it a new in leave for judicial review. The material relied with the law do not enhance that leave lies for judicial review to be accorded the plaintiff. It is not necessary to consider the other grounds because of the reasons set out above. The totality is that the action is dismissed in its entirety with costs.
    
14. The formal orders of the Court are:
    
    • (i) The Originating summons is without merit.
    • (ii) It is denied in its entirety and dismissed.
    • (iii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Tingnni Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor Generals: Lawyer for First Defendants