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Veve v Meketa [2023] PGNC 413; N10378 (21 June 2023)

N10378

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 07 OF 2023

VORE VEVE
Plaintiff

V
RONALD MEKETA In his Capacity as Managing Director of National Energy Authority
First Defendant

AND
JOESPH GABUT In His Capacity as Chairman of the National Energy Authority Board for and on Behalf of Himself, as well as the National Energy Authority Board.
Second Defendant

AND
NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2023: 15^th & 20^th June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Order 16 Rule 5 NCR – Appointment Interim Managing Director – Section 138 NEA Act – Section 4 (1) (a) & (b) & 5 (a) (b) (c) Regulatory Statutory Authority (Appointment of Certain Officers) Act 2004 Appointment of CEO of Regulatory Statutory Office – Application for – Certiorari – Declaration – Mandamus – Section 139 NEA Act Interim Positions –Allegation Breach of Appointment Procedures – Sufficient Interest – Public Service Age of Retirement Section 56 Public Services (Management) Act 1995 – Material relied insufficient – Balance Not Discharged – Judicial Review Refused – cost follow the Event.

Cases Cited:
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Somare, Re [1981] PNGLR 265
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Lupari v Somare [2010] PGSC 21; SC1071

Counsel:
J. Napu, for Plaintiff
D. Dupre, for First & Second Defendants
H. Wangi, for Third & Fourth Defendants

DECISION

21^st June 2023

1. MIVIRI, J: This is the decision on the plaintiff’s substantive notice of motion pursuant to Order 16 Rule 5 of the National Court Rules seeking certiorari to quash the decision of the Third and Fourth Defendants on the 09^th December 2022 in appointing the First Defendant as the Managing Director of the National Energy Authority.
   
2. He also seeks declaration that the subject appointment of the first Defendant as Managing Director of the National Energy Authority was unlawful. And he seeks mandamus to compel the second to the Fourth Defendant to restore the status quo for the Plaintiff to be restored as the Acting Managing Director of the National Energy Authority until the conclusion of the transition process, and until the National Energy Authority NEA is fully established.
   
3. He was granted leave for Judicial review on the 06^th March 2023 by this Court. In support of the substantive Notice of Motion, he relies on his own affidavit sworn of the 30^th January 2023 filed the 31^st January 2023, together with a supplementary affidavit sworn of the 09^th March 2023 filed 09^th March 2023.
   
4. On the converse, the third and fourth defendants rely on the affidavit of Diana Kilion sworn and filed of the 16^th February 2023, together with that of Jeklin Talonu sworn and filed also of the 16^th February 2023. Further the affidavits of Joseph Gabut sworn of the 21^st March 2023 filed 24^th March 2023. Lastly the two affidavits of Ronald Meketa firstly, sworn of the 24^th March filed 28^th March 2023. Secondly sworn of the 04^th April 2023 filed 05^th April 2023.
   
5. Relevantly the following facts come out from this evidence; Plaintiff was the Deputy Secretary of the Energy wing of the Department of Petroleum and Energy since the 18^th November 2020. In June 2021 the National Energy Authority was established with the enactment of the National Energy Authority Act 2021. It established Authority replacing the energy wing. All staff were retained of the energy wing and as most senior officer, Deputy Secretary Energy Wing, I assumed the position of Interim Managing Director for the National Energy Authority under section 138 until the appointment of a Managing Director. That was by operation of law, and I assumed by the NEA Act on the 06^th July 2021.
   
6. He disputes and swears by his affidavit of the 30^th January 2023, filed the 31^st January 2023, that On the 15^th January 2022 I was replaced by a new Acting Managing director Mr. Ronald Meketa appointed by the National Executive Council for three months by a Gazettal notice G79 dated 04^th February 2022. His term expired on the 04^th May 2022. He continued to occupy as Acting Managing Director for a further three months without renewal of that appointment.
   
7. In line with section 138 of the NEA Act there is no vacancy for that position during the transition period because I was still the interim Managing Director. And the National Executive Council made an error in making that appointment of the Managing Director on the 09^th of December 2022 contrary to section 138 of that Act. Because the position was never declared as vacant. And my performance was not appraised. And there was no vacancy put out on advertisement. And the vacancy advertised on the 18^th March 2022 was void because it took place prior to a declaration of vacancy, which was few days late on the 23^rd March 2022. And the advertisement was revoked by the Secretary for the Department of Personal Management, by letter dated 16^th August 2022. Which was four months prior to the appointment of the First Defendant. He was appointed during the transition period and prior to the completion of the full establishment of the Authority. And he was appointed to a position which was not lawfully created, and the terms and conditions not being determined nor established. And I was never informed of the appointment of the First Defendant nor the consequences thereof regarding my employment status. I was not given the opportunity to fairly contest the position, nor the reasons why I should contest the position.
   
8. That the age limit of the Managing Director is not an issue because under section 31 (6) he is not an officer of the Public Service together with the employees of the Authority.
   
9. These are the contentions that the plaintiff has raised in his affidavit contending that he continued in that position of the interim Managing Director pursuant to section 138 of the Act. The appointment of the First Defendant was not lawful as process was not followed to put him into that position. Certiorari lies to bring that decision into this Court to be set aside and it be declared void ab initio as process was not followed. Mandamus lies that he still holds that position as interim Managing Director. Because the transition is current and will be ended with a declaration of vacancy in the position and all that he has set out above in his affidavit. As it did not happen the occupation of the acting appointment of the First Defendant and then his appointment confirmed as Managing Director cannot stand in law. Process was vindicated and not followed to sustain the appointment.
   
10. This is the contention of the plaintiff counted by the evidence sworn 24^th March 2023 by Ronald Meketa Managing Director of the National Energy Authority in his affidavit filed of the 28^th March 2023. The National Executive Council appointed him as the Managing Director of the NEA on the 09^th December 2022 by Decision No. NG 52/2022 published in the annexure “RM-1” National Gazette No. G944 on the 09^th December 2022. He was acting Managing Director appointed on the 18^th January 2022 by annexure “RM-2” National Gazette No. G79 on 04^th February 2022.
    
11. Excerpts that are relevant to the contention of the plaintiff in the affidavit of Ronald Meketa of the 04^th April 2023 state that the plaintiff never applied for the subject position advertised in the newspaper publication both in the Post Courier and the National on the 18^th March 2022. And he was amongst fourteen highly qualified experienced and credible candidates short listed scrutinised and subsequently appointed as Managing Director in December 2022. And the recruitment was by a “transparent external recruitment process undertaken by Vanguard International, a reputable independent recruitment agency. I am of an informed view that the Plaintiff’s role as Interim Manager of the NEA was transitional and died a natural death, so to speak, upon my appointment as the Managing Director for NEA.
    
12. The position for the Managing Director for NEA was advertised publicly as part of a recruitment process that was impartial and merit based-rendering myself and fourteen (14) other candidates the opportunity to apply and go through a transparent recruitment process that ultimately resulted in my substantive appointment. The plaintiff never applied and therefore holds no sufficient interest legal or otherwise.
    
13. I feel it prudent for this Honourable Courts to also note with pertinence that the plaintiff, as of 09^th March 2023, is now Sixty-seven (67) years old and is well past due by seven (7) years of the mandatory retirement age from Public Service as required by provisions of section 56 of the Public Services (Management) Act 1995; and General Order 4 of the Public Service Orders. Annexure “RM-I” is true copy of the Plaintiff’s National Identification Card (NID) clearly showing his date of birth 09 March 1956.
    
14. Relevantly and primary to the issue raised is the evidence by affidavit of the witness Dianna Killion who swore an affidavit of the 16^th February 2023 filed also of that date. She is the executive Manager with the NEA responsible for corporate affairs including human resources. She was working with the department of Personal Management officers and is well versed with the transition of the National Energy Authority human resources matters including the process for Job evaluation. “Section 139 of the National Energy Authority Act 2021 (the NEA Act) sets out the regulatory framework to govern the terms and conditions and standing of officers in their different capacities prior to being a staff of the NEA or facing redundancy.
    
15. The clause effecting this proceedings relate to termination and demotion and as we will note under Section 31 (6) of the NEA Act and further sanctioned by the DPM and Public Service Commission that, “ The Staff of the Authority, including the Managing Director are not officers of the National Public Service: However, Section 139 (3) of the NEA Act clarifies that, “All terms and conditions under the Public Services (Management) Act 1995 and the Public Services General Orders continue to apply during the transitional period and all continuous services are deemed to be the services with the National Energy Authority...”
    
16. This evidence is strongly supported by the affidavit of Joseph Gabut OBE sworn 21^st March 2023 filed 24^th March 2023. He is the chairman of the Board of the National Energy Authority appointed by the National Executive Council by its decision number 389/2021 published in the National Gazette No. G41 of the 26^th January 2022. He details extensively the intricate process of law that was undertaken to arrive at a candidate befitting that office of Managing Director of the National Energy Authority. The following illustrate that fact; “Immediately after being made aware of the advice from the NEC Secretary, I directed Vanguard International to conduct interviews of two additional candidates for the NEA Managing Director position during which I personally participated. On the 19^th May, 2022, the PSC in turn wrote to my office and requested the NEA Board to resubmit a list of five (5) candidates in order of preference together with a full report of Vanguard International and relevant meeting minutes of the NEA Board to enable the PSC to undertake its own independent assessment of the appointment process. Annexure JG-4 is a true copy of the letter from the PSC to the office of the Chairman of the NEA Board.
    
17. On 02 June 2022, the NEA Board convened to correct the statutory oversight as per the advice from the NEC Secretary and the PSC and resolved to recommend a list of five (5) candidates. On the 03^rd of June 2022, I wrote to the PSC Chairman and acknowledged his and the NEC Secretary’s sound advice on due process and provided the NEA Board’s List of five (5) candidates in order of preference to be assessed by the PSC to arrive at a shortlist of three (3) candidates to be submitted to the then Minister for Energy to make a recommendation to the NEC for the appointment of the NEA Managing Director. Annexure JG-5 is a copy of that letter.
    
18. On the 03^rd October 2022, after the long (5) five months wait due to the National Elections and formation of Government, the PSC by way of its letters referenced PSC10-48-NEA and dated same, finally completed its review of the five (5) candidates shortlisted and furnished by the NEA Board, and after its assessment and strict application of the merit-based appointment requirements as stipulated by Statute. Provided its three (3) finalists in order of preference with the First Defendant named second therein. Annexure JG-6 is a true copy of PSC‘s letter dated 03 October 2022.
    
19. The NEA Board, after having considered the Public Services Commission preference, resolved unanimously that the First Defendant be appointed as the substantive Managing Director for NEA; and accordingly recommended to the Minster for Petroleum and Energy in accordance with Law and process proper. On 15 November 2022, after noting the recommendation of the PSC and the resolution of the NEA Board regarding the final three (3) shortlisted candidates, the NEA Board’s observations of the First Defendant performance as the Acting Managing Director for NEA, the NEC appointed the First Defendant as the substantive Managing Director for NEA by way of its (NEC) decision No. NG52/2022 and dated same which was published by authority on the National Gazette No. G944 on Friday 09 December 2022.” Annexure JG-7 is a true copy of the National Gazette G944.
    
20. In all fairness moreover, the Salaries Renumeration Commission (SRC) in acknowledging the First Defendant as the Legally appointed Managing Director for NEA also, in the same breath so to speak, acknowledges the Plaintiff’s service to NEA and the People of Papua New Guinea for the very vital role he played during the transitional period he was interim Managing Director for NEA and will remunerate him fully in appreciation.”
    
21. In all fairness these are the material evidence both for and against raised by the issue contended by the plaintiff. This evidence shows a consistency in compliance of the law to see out a process to get an interim Managing Director, then an acting Managing Director, then a managing Director. It makes no sense to go to great lengths to draw up an act of parliament to set up an Authority that will enhance government administration implementing its policy to drive the energy sector and to breach the law with the same hands. What is set out and runs fundamental is that the law was complied in all its spheres to ensure and enhance a process to bring forth a candidate worthy of that new Authority that will drive government policy and work in this sector. It does not bear out what is often spoken in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
    
22. And this view is compounded by the words of section 138, “Interim Managing Director. (1) On the commencement of this Act, the Deputy Secretary responsible for the Energy Wing of the former Department of Petroleum and Energy will act as the Interim Managing Director until the appointment of a Managing Director under this Act. (2) The Interim Managing Director is vested with the full powers and authority under this Act.” The plaintiff took that office of by that operation of law. In it there is no time set as the transition period. And no evidence has come forth as to this definition either by law or practise that would go in the way contended by the plaintiff. But if read with section 29 of that Act, Managing Director establishing that office, it means the manner for the appointment of that person is read with the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. And so, sections 4, 5, and 6 of that Act are relevant to the appointment of the first defendant here. That is the fair large and liberal interpretation due given. And it is called for given the facts circumstances set out above.
    
23. What is the story of the evidence set out above applied to this law will tell if the contention of the plaintiff stands or falls. Here it is my assessment that the evidence that I have set out above shows consistency adherence and strict track to the letter of the law in the appointment process that has resulted in the appointment of the first defendant. The NEA board, PSC and the NEC have together come out in the way they have with the first defendant following what the law has prescribed. And the evidence is self-explained in the way set out above in this compliance. It follows that the plaintiff has not shown error necessary on the balance to sway the scale in his favour of the contention that he makes. He was interim, in the mean to get the Authority up and running. It came to that level enough to call for and appoint and acting managing director as was the case here. Which was renewed again for the three months per the evidence set out above following established procedures set out above by law. That set-in place by an independent renown recruiting Agency, Vanguard International screening of all, 14 candidates drawn down to final three of which the incumbent, first defendant was the second out of the three in order of preference who secured the job proclaimed.
    
24. I have no doubts in my mind that section 29 & 138 of the NEA Act with sections 4, 5, and 6 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 were complied with. What has come out in the eventual appointment of the first defendant was the end result of that process. In my view the plaintiff was not holding that office and does not hold that office by the operation of this law up to this Judgment date. And in any case the evidence that I have gone to extreme length to draw set out above, does not heed his plea and contention. He has gone past the minimum requirement in the age, he is 67 years old. It would be going to the days of slavery to make him work in that age given. The law must be heeded section 56 of the Public Services (Management) Act 1995. He as a person must be respected under our Constitution. He gave so much to the sector he must be rewarded not worked to his death.
    
25. He does not have the standing even to bring this matter here: Somare, Re [1981] PNGLR 265. Because he has simply withered away by the process of law heeded by all parties players involved to come out in their respective roles with the first defendant as the incumbent. Judicial review is about the process of law taken to arrive at the decision. It is not about changing the decision, or the substance, Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. The public policy considerations that have come out as a result of the compliance of the law here depict consistency in the decision made to the appointment of the first defendant. It does not show what is contended by the plaintiff. That he remains the interim managing director, or that it reverts back to that era. Time has moved and all defendants have played their part to come out with the eventual appointment of the first defendant. He secured by his merit. And all accord has been made the plaintiff. Section 59 Natural Justice has been observed in all fours by the facts set out above. There is no room to go down that path. The decision to appoint the first defendant has grown out of the process of law and will stand as it is, by that fact in law. He remains in that seat by law and will stand aside the interim Managing director long gone in that process. He is interim in the mean does not overcome and succumb and endure. He has served his purpose in the mean and must go as his time has served its purpose by law. The law will be observed not broken.
    
26. The socio-political aspirations of the Country must move to enhance development of this very important sector, the energy sector. And in the way depicted above by the evidence applied to the law I find that the plaintiff has not discharged the balance to show errors of law, ultra vires, because vacancy has been declared. There is no need to appraise as he contends his performance. It is not by law. And advertisement has been made of the vacancy and the position culminating in the processing from 14 candidates to 3 to leave with the ultimatum of the first defendant. There is no transitional period and even if it were, it has given out to the eventual proclamation of the first defendant and the Authority on its own feet, giving what the Government has seen to set it up for. His role in it must be commended and will be accorded his dues per the evidence of the Chairman of the Energy Authority Board set out above. The aggregate in my view is that this is a challenge that does not see what the case in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005), was or Lupari v Somare [2010] PGSC 21; SC1071 (10 June 2010). And therefore, will not draw same given.
    
27. Accordingly, I find no cause to grant the plea of the plaintiff. He does not discharge the balance and judicial review does not lie given. I dismiss the notice of motion with costs to follow the event. He will pay the costs of the proceedings in favour of all defendants forthwith.
    
28. The formal orders of the court are:
    
    • (1) Judicial review is not made out & refused.
    • (2) Costs will follow the event in favour of the defendants.

Orders Accordingly.
__________________________________________________________________
Napu & Company Lawyers: Lawyers for the Plaintiff/Applicant
Jema Lawyers: Lawyers for the First & Second Defendants
Office of the Solicitor General: Lawyers for the Third & Fourth Defendant