Fred Yakasa v Toami Kulunga and The Independent State of Papua New Guinea (2012) N4550

• Jurisdiction: Papua New Guinea
• Judge: Davani, J
• Judgment Date: 25 January 2012
• Court: National Court
• Citation: (2012) N4550
• Docket Number: OS 958 OF 2011
• Year: 2012
• Judgement Number: N4550

Full Title: OS 958 OF 2011; Fred Yakasa v Toami Kulunga and The Independent State of Papua New Guinea (2012) N4550

National Court: Davani, J

Judgment Delivered: 25 January 2012

N4550

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 958 OF 2011

BETWEEN:

FRED YAKASA

Plaintiff

AND:

TOAMI KULUNGA

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Davani, J

2012: 16th, 25th January

PRACTISE AND PROCEDURE – Application to join proceedings – Application to amend Originating Summons - Return of Interim Injunctive Orders – Court to properly exercise judicial discretion – Section 155(3)(a)(b) of the Constitution.

SUPREME COURT – Supreme Court decision – amendment to legislation – amendments with retrospective effect – amendments affect Supreme Court decision - whether the Supreme Court decision is binding – whether amended legislation is valid - Prime Minister and National Executive Council Act 2002 (as amended).

CONSTITUTION – National Court’s powers – obvious conflict in Supreme Court decision and legislation – conflict raises questions of law – Reservation for Supreme Court – Section 15 of Supreme Court Act.

Facts

The plaintiff seeks Declarations that he is the lawfully appointed Police Commissioner. However, the first defendant says he is the lawfully appointed Police Commissioner. The plaintiff relies on appointment made by the Somare Government. The first defendant relies on appointment made by the O’Neill Government. The Somare Government’s actions, are based on decision by the Supreme Court in SCR 3 of 2011 whereas the O’Neill Government claims to be the legitimate Government relying on amendments to the Prime Minister and National Executive Council Act 2002 (as amended) where the amendments declare, amongst others, that there is a vacancy in the Office of the Prime Minister, as at 2nd August, 2011, and the amendments were made retrospective to 1st January, 2011.

The Court had to determine several applications before it which were;

1. The extension of Interim Restraining Orders.

2. Application to join the proceedings by Peter O’Neill and the National Executive Council; and Jeffrey Nape Speaker of Parliament.

3. Application by the plaintiff to amend the proceedings.

4. Application to dismiss the proceedings for lack of Section 5 Notice under the Claims By and Against the State Act (‘CBASA’).

Issues

1. In relation to the application to amend the Originating Summons, the Court considered whether the amendments will determine, amongst others, the real question in controversy between the parties and that the amendments show that there are serious questions to be tried.

2. In relation to the applications to join, the Court considered whether the joinder will determine;

- That the applicants have sufficient interest in the proceedings.

- The joinder will ensure that all matters in dispute will be effectively and completely adjudicated.

3. In relation to the extension of the Interim Injunctive Orders, amongst others, that the status quo will be maintained.

4. In relation to the application to dismiss proceedings, that Section 5 did not apply to proceedings commenced by Originating Summons.

5. As to the Court’s powers to decide on the substantive proceedings;

- The issue of whether the O’Neill Government could amend legislation on 12th December, 2011, the day the Supreme Court handed its decision down in SCR 3 of 2011, must be clarified, in view of Section 142(4) of the Constitution.

- Whether proceedings in Parliament on 12th, 13th and 14th December, 2011 are justiciable or non-justiciable in accordance with Section 134 of the Constitution.

Reasons

The Court held that these issues are best answered by a Reservation under Section 15 of the Supreme Court Act. The questions to be referred to the Supreme Court are;

1. Whether the Supreme Court decision in Haiveta v. Wingti (No.3) [1994] PNGLR 197 and SCR No. 3 of 2011 gives the National Court the power to;

1(1) Call evidence in proceedings that eventuated in Parliament in relation to the election of Peter O’Neill as Prime Minister and to address the issue of the non-justiciabity or not of these proceedings as provided in s.134 of the Constitution.

1(2) If the National Court can call evidence to then address whether Mr O’Neill was elected “on the next sitting day” as provided in s.142(4) of the Constitution.

2. If the National Court finds that the O’Neil Government did not sit “on the next sitting day”, or did sit “on the next sitting day”, for the National Court to then proceed to consider and make findings as to who actually represents or is the Independent State of Papua New Guinea, the entity.

3. Having found who represents the Independent State of Papua New Guinea, to then rule on the validity of the amendments to the Prime Minister and National Executive Council Act 2002 (as amended).

4. Thereafter, to then call evidence and deliberate on the substantive action before the National Court.

5. If the Supreme Court finds that the National Court does not have the power to make these findings, for the Supreme Court to assume that role and to make the findings sought in para. nos. 1(1), 1(2), 2, 3 and 4 herein.

6. Having made those findings, for the Supreme Court to then issue directions in relation to the conduct of the substantive proceedings before the National Court.

Cases

Haiveta v. Wingti (No. 3) [1994] PNGLR 197

AGC (Pacific) Ltd v. Sir Albert Kipalan & ors (2000) N1944

Papua Club Inc. v. Nusaum Holdings Ltd (2002) N2273

Emapi Luna Pakomeyu v. James Siai Wamo (2004) N2718

Maps Tuna Ltd v. Manus Provincial Government (2005) N2867

PNG International Hotels Pty Ltd & anor v. The Registrar of Land Titles and ors (2007) N2307

Maps Tuna Ltd v. Manus Provincial Government (2007) SC857

Isaac Lupari v. Sir Michael Somare, MP, Prime Minister and Chairman of the National Executive Council and The Independent State of Papua New Guinea (2008) SC930

The State v. Manoburn Earthmoving Ltd (2008) PGSC 21 SC933

Konze Kara v. Public Curator of PNG (2010) N4048

SCR 03 of 2011, Special Reference by the East Sepik Provincial Government

Counsel:

D. Dotaona, for the Plaintiff

A. Kimbu and M. Parua, for the First Defendant

L. Henao and W. Bigi, for the Second Defendant

P. Wright, for Sir Arnold Amet, Applicant to Join

T. Twivey, for the Speaker of Parliament, Jeffrey Nape, Applicant to Join

M Wilson, for Peter O’Neill and the National Executive Council, Applicants to Join

DECISION

25th January, 2012

1. DAVANI, J: Fred Yakasa, the plaintiff/applicant (‘plaintiff’) comes to Court to extend Interim Ex parte Restraining Orders he took out on 16th December, 2011. He is also here to oppose Applications to Join filed by several persons and entities which I will set out below.

2. Another application that he seeks to move is one seeking leave of this Court to amend his Originating Summons filed by Dotaona Lawyers on 16th December, 2011.

3. Because there were several applications before me, I dealt with all applications in such a way where the lawyers on record proceeded before the lawyers involved in the Applications to Join.

4. I also state for the record that those aligned with either Peter O’Neill or Sir Michael Somare and who now appear before me as counsel, will be referred to in this decision as representing the ‘Somare Government’ and the ‘O’Neill Government’.

Background

5. Before I mention the applications before the Court, I will set out below the important factual background from which these applications emanate.

6. On the evening of 16th December, 2011, the plaintiff applied ex parte for orders restraining the first defendant and his servants and agents from arresting him and his servants and agents and to also order, that they not be prevented from performing their duties and functions as policemen. These orders read:

“1. Pursuant to Order 1 rule 7 of the National Court Rules, an order that the requirements for service be dispensed with and that this application proceed ex parte.

1. An interim injunction until trial or further order restraining the defendants and their servants and agents and whosoever they may be described from arresting, harassing, intimidating, approaching, hindering, or interfering with the plaintiff, his servants and servant and agents, subordinate and commanders from performing their duties and functions as policemen under the Constitution and the Police Act 1998.

2. Matter returnable tomorrow for ex parte hearing at 9:30am.”

7. On 17th December, 2011, the plaintiff and his lawyer applied ex parte for an extension of the orders of 16th December, 2011. The plaintiff’s counsel made submissions on the orders sought in relation to the Interim Injunctive Orders and which orders were granted. These orders read:

“1. The Interim Orders of 16 December 2011 are extended and are made returnable on Friday, 23 December 2011 at 1:30 pm.

1. The plaintiff through his lawyers will serve all...