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Temai v Marape [2021] PGNC 83; N8825 (20 May 2021)

N8825

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 59 OF 2021 (IECMS)


BETWEEN:
MICHAEL BAL TEMAI Provincial Administrator for Simbu
Plaintiff


AND:
HON. JAMES MARAPE, AS Prime Minister and the Chairman of National Executive Council
First Defendant


AND:
NATIONAL EXECUTIVE COUNCIL
Second Defendant


AND:
HON. JOE SUNGI, MP As Minister for Public Service
Third Defendant


AND:
Ms. TAIS SANSEN as the Secretary for Department of Personal Management
Fourth Defendant


AND:
HON. MICHAEL DUA, MP Governor Simbu Province
Fifth Defendant


AND:
THE SIMBU PROVINCIAL EXECUTIVE COUNCIL
Sixth Defendant


AND:
SABASTIAN KEE
Seventh Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant


Waigani: Miviri J
2021: 11th May


PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave application for Judicial Review – Notice pursuant to Order 16 Rule 3 (3) NCR – Statement pursuant to Order 16 Rule 3 (2) (a) NCR – Undertaking as to Damages – Affidavit verifying Facts – Affidavit of Applicant – Delay – Arguable case – Internal processes not exhausted – Material relied insufficient – Balance not discharged – Leave refused – cost follow the event.


Cases Cited:


Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kapal, The State v [1987] PNGLR 417
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Makeng v Timbers (PNG) Ltd [2008]; PGNC 78; N3317
Markham Farming Co Ltd v Wanga [2019] PGNC 366; N8103
Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357
NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70
Wartoto v State [2013] PGSC 59; SC1298
Wereh v Cajetan [2020] PGNC 196; N8418


Counsel:


P. Kuman, for Plaintiff
K. Kipongi, for State Defendants


RULING

20th May, 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons of the 06th May 2021 pursuant to Order 16 Rule 3 of the National Court Rules where the applicant seeks leave for Judicial review.
  2. To plead his cause the plaintiff has filed in addition to the Originating summons, a Statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules. An affidavit verifying the facts, his own affidavit dated the 06th May 2021 and a notice pursuant to Order 16 Rule 3 to the Secretary for Justice.
  3. In the Statement he pleads by Order 16 Rule 3 (2) of the National Court Rules leave be granted to him the plaintiff/Applicant to apply for Judicial Review to seek an order for certiorari pursuant to Order 16 Rule 1 (1) of the National Court Rules to bring into this Court and quash the Decision of the National Executive Council made on 30th April 2021 to suspend him as the Provincial Administrator of Simbu on the following grounds:
  4. The decision is at annexure “MBT 4” to his affidavit. It is the National Gazette G280 dated the 04th May 2021 and reads, “Organic Law on Provincial Governments and Local Level Governments, Public Service (Management) Act 1995 Suspension of appointment and appointment of Acting Provincial Administrator
  5. The National Executive Council, by virtue of the Powers conferred by Sections 73 (2A) and 73 (2C) if the Organic Law on Provincial Governments and Local Level Governments and Sections 60A and 60C of the Public Services (Management) Act 1995, and all other powers it enabling, on the recommendation from the Simbu Provincial Executive Council, following procedures prescribed by or under the Public Services (Management) Act 1995, hereby-

With effect on and from the date of publication of this instrument in the National Gazette

Dated this 04th day of May 2021.

J. Marape

Chairman.

  1. What is primarily at the heart is the applicant’s appointment as the Provincial Administrator which has been suspended pending an investigation. In his place for a period of three months is an acting Provincial Administrator appointed. Or until the investigations are completed against the suspended Provincial Administrator whichever occurs first. It means the acting Provincial Administrator is for three months only, or until the investigations are complete against the suspended Provincial Administrator, the plaintiff. Depending thereof he may come back to the seat after the allegation aired are cleared.
  2. This becomes clearer in the light of the plaintiff’s affidavit annexure “MBT 5” Statutory Business Paper dated the 16th April 2021 subjected as, “Suspension of Provincial Administrator for Simbu, Mr Michael Bal Temai and Acting Appointment as Per shortlist recommended by Simbu PEC. It details its purpose against allegations that have been raised against the plaintiff. And approval to suspend him and direction for investigation to commence against. And in the mean time to get one of the candidates recommended by the Simbu Provincial Executive Council (PEC) to fill that post on an acting basis. It also sets out a show cause notice to the Plaintiff on the 16th January 2021 issued by the chairman the Governor of Simbu PEC. Which contain 12 serious allegations of Misappropriation and abuse of office, allegedly against the Plaintiff pertaining to his roles as the Provincial Administrator Simbu, signed by Hon. Joe Sungi, MP Minister for Public Service. Attached to it are, the Show cause letter from Governor to the Provincial Administrator, the response of the Provincial Administrator, the PEC resolution, the Public Services Commission (PSC) consultations, PSC Recommendation, and the copy of the CV of the intended acting appointees.
  3. The Show cause notice is dated the 16th January 2021 addressed to the Plaintiff as Provincial Administrator and inviting him to show cause as to 12 allegations from the Simbu Provincial Government office of the Governor. Attached to it are a number of annexures, one of which is a requisition for expenditure with the suppliers address as Kuman Lawyers, P. O. Box 1902, Port Moresby, being for payment for legal Bills, in the sum of K40, 000.00. dated the 10th July 2019. Followed next are three Department of Finance Simbu Provincial Finance office, office of the Provincial Finance Manager, first dated the 31st December 2019 addressed to the Manageress Bank of South Pacific, Clarification on Cheque No. 014908 in the sum of K 250, 000. 00 for Pay cash Paymistress. C/- Therese Apa Provincial Finance office Kundiawa, SP. The letter is in the following, “ I write to clarify and confirm this Cheque No. 014908-Amount K 250, 000.00 from Simbu Provincial Government Operating Account, being payment for Prime Minister’s visits expenses. Please facilitate as advised. Thank you. Martha Anton Provincial Finance Manager.
  4. There is a similar second letter dated the same, also from the Department of Finance Simbu, Provincial Finance Office, Office of the Provincial Finance Manager. It is also addressed to the Manageress Bank of South Pacific. It is for the sum of K 250, 000.00 and is subjected also clarification on cheque number 014909 for Pay cash Paymistress, C/-Elizabeth Kobale, Provincial Finance Office Kundiawa, SP. It is in similar terms as the previous, also signed by the same officer. And there is again a third similar letter, dated the same date, also from that same office. It is also addressed to the Manageress Bank of South Pacific Kundiawa, and is for the same subject, but for cheque number 014910, also in the sum of K 250, 000.00 for pay cash Paymistress c/-Theresia Bau, Provincial Finance Office Kundiawa, SP. The letter is also of the office of the Provincial Finance Manager, and also signed by the same officer.
  5. The affidavit next encloses a circular Number 01/2021 addressed to all members of the PEC, All Presidents and Nominated MPA, All Public Servants. It is subjected as a Show Cause Notice. It is from the office of the Provincial Administrator and bears the seal and the name of the plaintiff. It is clearly a response to the show cause written by the Plaintiff. And reads, “This to advice all addressees that the Honourable Governor has purported to serve me a “Show Cause Notice” (SCN) dated the 1st February 2021 outlining 4 or 5 specific issues of his concern which are unclear and confusing. For now, I have refused to accept the SCN for the following reasons; 1. The SCN clearly does not comply with my contract of Employment and the procedure for discipline. 2. The SCN is legally and grossly defective in that there is no reference to any of the specific grounds under my contract of Employment. 3. The SCN is legally and grossly defective because he has sought to have me answer allegations which are already dealt with by the National Court in Kundiawa in OS No. 266 of 2020 where there is a National Court Order made on 03rd December 2020 rescinding all those allegations against me. He cannot visit those allegations again when there is a court Order in place, and he is likely to contempt of the said National Court Order.”
  6. What is clear is that the SCN is from the office of the Governor Simbu. The reply ought to be to that office, not the PEC, or the Nominated members, or the Public Servants. They are not the instigators of the SCN and cannot be written to in the way it is addressed to by the Plaintiff. The allegations contained in the SCN are to the office of the Governor. And if there is indeed a Court Order in place that should be drawn to the Governor, and the prospects of that Order coming down to contempt should be drawn to him. That Order is not attached. It would be fundamental if it were in those terms as written by the plaintiff.
  7. The material that follows in the affidavit of the plaintiff clearly evidence a process of discipline, including recommendation on the suspension of the Plaintiff written 26th March 2021 to the Chairman of the Public Services Commission, for the suspension of the Plaintiff as Provincial Administrator Simbu, and the reasons for suspension. It is authored by Hon. Joe Sungi MP Minister and is copied to the Prime Minister, Governor for Simbu/ Chairman of PEC and Secretary to DPM.
  8. The affidavit further includes a letter by Taies Sansan Secretary dated the 16th April 2021 addressed to the Chairman of the Public Services Commission subjected consultation under section 60A on the appointment of an Acting Provincial Administrator for Simbu Provincial Administration, Should the Suspension Occur. The subject letter is copied to the Prime Minister, Minister for Public Service and Governor of Simbu Province & Chairman of PEC.
  9. It also includes the response to the Show Cause Notice by the Provincial Administrator the Plaintiff dated the 04th February 2020. It is addressed to Honourable Michael Bogai Dua, MP Governor of Simbu Province. The subject is response-Show Cause Notice dated 1st February 2021. It is signed by the Plaintiff and comprise his response to the show cause notice. It is copied to the Minister for Public Service, Secretary of DPM, Chairman Public Services Commission, The Prime Minister, & the Deputy Governor and all PEC Members.
  10. This is responded to by a PEC Recommendation on the revocation of the appointment of the Provincial Administrator Simbu Michael Bal Temai and Acting Appointment of one of the Short lists recommended as per PEC Resolution. It is addressed to Hon Joesph Sungi Minister for Public Service. And is from the Simbu Provincial Government Office of the Governor dated the 18th February 2021.
  11. Then there is PEC Meeting No. 2 under section 23 (2) (e) of the Organic Laws dated the 24th February 2021 venue as Gerehu. What comes out is that “Michael Temai Bal, The Provincial Administrator be suspended immediately for unfavourable response and insubordination to PEC on the show cause notice (SNC) and further investigation and audit to be conducted by the DPM to substantiate the issues raised for transparency and good governance.” It is signed by Hon. Michael B Dua Governor and Chairman and Peter Aba as Executive Officer and sealed with the seal of the Office of the Governor Simbu Provincial Government.
  12. Overall the affidavit filed by the plaintiff is an all-encompassing one particulars as set out above, showing a process in the events that led to the suspension over allegations that are seen to be investigated. It is evident that a disciplinary process has begun hence the suspension of the plaintiff evidenced by “MBT 4” National Gazette G280 dated the 04th May 2021, & “MBT 5” Statutory Business Paper dated the 16th April 2021 set out above. It is clearly a transparent and open investigations initially started out with a Show Cause Notice which has not landed well and so the invocation of the other authorities’ departments of Government responsible to see out. And all administrative as well as Political heads involved to see out that process begun and in its initial stages with suspension firstly of the Plaintiff to allow.
  13. The necessary process has just started out and is yet to be completed:

“This is very clear evidence that this matter is yet to be completed within that internal process. And it will not come into this Court without exhaustion of that process. Leave cannot be sought without that completion. Further he is by that fact a person who does not have standing because suspension is not the same as dealing with the matter and completing it. He has not been affected by the process completed. The internal process has just merely started and the ink on the paper has not dried up for him to run into court. There is no delay but that is dependent on the exhaustion of the internal process which has not taken place. It means also there is no arguable ground demonstrated because the internal process is still open and pending completion. It does not fit in with Makeng v Timbers (PNG) Ltd [2008]; PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014), Wereh v Cajetan [2020] PGNC 196; N8418 (17 July 2020).


This is what is pleaded out by the facts set out above in the plaintiff’s cause.


  1. They do not warrant leave because the internal process that has been started has not been completed: Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989). It would constitute an abuse of process if the process set out by the facts above are not completed, in the sense that the allegations if sustained against the plaintiff lead further to his demise in the chair that he holds as Provincial Administrator. It has not come to that stage. He does not have standing to come into court on the suspension over the allegation. They have not been sustained so effecting his occupation as Provincial Administrator Simbu but he remains suspended pending that investigation. Suspension does not make right what is alleged: Kapal, The State v [1987] PNGLR 417 (21 December 1987). The allegation must be investigated and its veracity determined and established as to how it connects to the plaintiff, and if so, what consequences flowing to him in his capacity as suspended Provincial Administrator Simbu. There is no standing within NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 (6 May 1987) in the case of the plaintiff by his facts. He does not qualify on this ground for leave.
  2. Nor has he demonstrated an arguable case warranting given his facts set out above read with the authorities. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). Here it is quite clear the process has just begun. What then would be the process that has not been accorded for leave to be granted to the plaintiff for the writ of certiorari to lie when the beginning has just been laid out, and the end not made out in his demise. It will be only when in the completion of that internal process, there is no recourse to the hands of the law can there be proper basis to be reviewed: Markham Farming Co Ltd v Wanga [2019] PGNC 366; N8103 (2 July 2019). It is fundamental and reinforced that the right to be heard is observed where a right is seriously affected it has been affirmed upheld where observance has not eventuated: Marat v Hanjung Power Ltd [2014] PGSC 33; SC1357 (4 July 2014). That is not the case here by the pleadings because suspension has taken place. It has begun the process by law it will not be disturbed by this court. And this is clear from Wartoto v State [2013] PGSC 59; SC1298 (15 November 2013).
  3. The reason is quite simple judicial review is not for busy bodies and the like it is a very restrictive domain and the grounds to invoke by leave are very restrictive and stringent: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). The totality is that leave has not been demonstrated by the plaintiff on the material he has filed, and the law relating set out above do not entail that leave lies in his favour for judicial review. Accordingly Leave is refused his originating summons is dismissed with Costs forthwith.
  4. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

P. Kuman Lawyers : Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendant

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