Philip Aeava v National Executive Council, Thomas Waim and the Independent State of Papua New Guinea (2001) N2136

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 02 August 2001
• Court: National Court
• Citation: (2001) N2136
• Year: 2001
• Judgement Number: N2136

Full Title: Philip Aeava v National Executive Council, Thomas Waim and the Independent State of Papua New Guinea (2001) N2136

National Court: Sawong J

Judgment Delivered: 2 August 2001

N2136

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

OS 697 OF 1999

BETWEEN:

PHILIP AEAVA

AND:

NATIONAL EXECUTIVE COUNCIL

AND:

THOMAS WAIM

AND:

THE STATE

WAIGANI / MADANG : SAWONG J.

2001 : 14th , 17th May, 2nd August

CONSTITUTIONAL LAW — Head of State — Immunity from judicial review of acts — Head of State — Advise that of National Executive Council — Telecommunications Act 1996, s. 39 (1), (2) — Constitution s. 86 (2).

TELECOMMUNICATION ACT — Appointment of Chief Executive — s. 39 (1) — Suspension of Chief Executive by Head of State — Suspending authority must observe principles of natural justice.

INTERPRETATION ACT — Power to appoint implies power to suspend.

UNDERLYING AND CONSTITUTIONAL LAW -Principles of natural justice.

CONSTITUTIONAL LAW — Harsh and oppressive — Suspension without charges, for long time amounted to harsh and oppressive therefore unlawful.

FACTS

The Telecommunication Act, 1996, s. 39 (1) provides for the appointment of the Chief Executive of Pangtel by the head of State, acting on advice. Section 39 (1) provides the "Chief Executive of Pangtel .. shall be appointed by notice in the national Gazette by the Head of State, acting in advice, given after considering recommendations by the Minister ..

There is no express statutory power of termination or suspension in the Act. The Interpretation Act, s. 36 (1) provides that "where a statutory provision confers a power to make an appointment, the power includes power ... to remove or suspend a person so appointed."

The Constitution, s. 86 (2) provides that the ... "Head of State shall act only with, and in accordance with the advice of the national Executive Council, or some other body or authority prescribed by a Constitutional Law or an Act of Parliament for a particular purpose ..." and s. 86 (4) provides that "the question, what (if any) advice was given tot he Head of State; or by whom, is non justiciable".

The Chief Executive of Pangtel, was suspended by the head of State acting upon the advice of the NEC.

ISSUES

1. Whether the actions of the Head State, acting with and in accordance with the advice of the NEC in suspending the Chief Executive of Pangtel was justiciable or not.

2. Whether as a matter of law, the actions of Head State, acting with and in accordance of the advice of the NEC in suspending the Chief Executive of Pangtel when no charge have been brought against the Chief Executive, no investigating committee has been established and where the suspension has been for a period of more than one year, were such that, the suspension was harsh and oppressive and therefore unlawful.

3. Whether as a matter of law, principle of natural justice should be observed for dismissal or suspension of the Chief Executive.

HELD

1. As the actions of the Head of State, acting with and in accordance with the NEC was in breach of principles of natural justice, his actions were justiciable.

2. Where a statute gives a right of suspension expressed or implied, unless there is expressed provision in an Act excluding a right to be heard, that right must be offered to that person.

The principles of natural justice are part of the underlying law of Papua New Guinea and there is nothing in the Telecommunications Act which excludes the right to be heard.

PAPUA NEW GUINEA CASES CITED

Premdas v. The Independant State of Papua New Guinea [1979] PNGLR 324

Minister for Lands v. Frame [1980] PNGLR 433

Iambakey Okuk v. Fallsheer [1980] PNGLR 274

Raz v. Matune [1985] PNGLR 329

Kila Wari & Seven Ors v. Gabriel Ramoi & Sir Kingsford Dibela [1986] PNGLR 112

Gegeyo v. Minister for Lands and Physical Plnning [1998] PNGLR 336

Leo Nuia v. Benias Sabumei [1992] PNGLR 90

L. MANUA, for the Plaintiff

J. KUMURA, for the First & Third Defendants

G. GARO, for Second Defendant

D E C I S I O N

2nd August, 2001

SAWONG J: The plaintiff in this action has commenced proceedings by way of Originating Summons claiming that his purported suspension on the 3rd of November, 1999 by the first and third defendants is unreasonable and unlawful. In the alternative he seeks an order that his purported suspension is unjustified or harsh and oppressive.

The trial of this matter was conducted on affidavit evidence. The plaintiff relied on his own affidavit's numbering 6. These were his affidavits of 10th November, 1999 and filed on the same date (Exhibit P1), affidavit of the 16th November, 1999 and filed on the same date (Exhibit P2), affidavit sworn and filed on the 17th November, 1999 (Exhibit P3), another affidavit sworn on the 5th December, 1999 and filed on the 6th December, 1999 (Exhibit P4), affidavit of Emmanuel Kairu sworn on the 16th November, 1999 and filed on the 17th November, 1999 (Exhibit P4, 5), and the Plaintiff's affidavit sworn to the 7th April, 2001 and filed on the 1st May, 2001 (Exhibit P6). Some paragraphs of all these affidavits were objected to and were struck down on various grounds. It is not necessary to state which paragraphs nor the grounds. The amended affidavits were then tendered and accepted into evidence by consent of all parties.

The second defendant's evidence consisted of the affidavit evidence of Eri Tara sworn on 10th November, 1999, and filed on the 17th November, 1999 (Exhibit D1) and the affidavit of Thomas Waim sworn on the 16th November, 1999 and filed on the 17th November, 1999 (Exhibit D2), the second defendant's further affidavit sworn and filed on 14th December, 1999 (Exhibit D3) and a further affidavit from Thomas Waim sworn on the 6th February, 2001 and filed on the 14th February, 2001 (Exhibit D4).

The first and third defendants did not call any evidence.

At the conclusion of the hearing of the evidence the court directed that all parties were to file and serve written submissions by close of business on 17th May 2001. I indicated then that I would then attempt to deliver my decision on this matter on the 24th of May, 2001. Unfortunately, I was not able to deliver the decision as I was subsequently engaged in a four (4) day trial.

As a result of the directions given by the court only the plaintiff and the second defendant have filed written submissions. Up till today no submissions have been received from the first and third defendants.

Much of the facts between the parties are really not in dispute. I find that the following facts are not in dispute. On 6th February 1997, the plaintiff was appointed as chief executive of PANGTEL by gazetted instrument of appointment.

On the 23rd September, 1999 Peter Waiang was appointed the minister for Information and Communication. On the same day (24th September, 1999) the minister through his first secretary, Sam Mogia requested PANGTEL to meet their expenses for airfares, clothing, travelling, accommodation, entertainment, allowances of personal nature, for the minister to attend meetings overseas.

On the same day (24th September, 1999) the board of PANGTEL including the plaintiff met and deliberated on the request. The board accepted the request for airfares and purchased the minister's airline tickets. However, the board rejected the claim for other allowances. There is evidence that the minister then followed this request with a letter to the plaintiff. Upon receiving the letter the plaintiff sought legal advice and the legal advice was that as the funds sought were not for the benefit of PANGTEL as set out in the Act, the claim for those allowances should be refused. The plaintiff then advised the minister that it was unlawful to pay him those allowances.

On the 29th September, 1999 the minister than requested the plaintiff for a motor vehicle and that request was also rejected on basis that it was not able to meet that request.

On the 4th October, 1999 the minister suspended the plaintiff on the basis that there was rampant abuse of power and establish procedures including mis-management, gross financial abuse, lack of countability and commenced and investigation.

However, on the 5th October, 1999 the plaintiff instituted court proceedings in OS 608 of 1999...