John Momis, Michael Ogio, Sam Akoitai and Michael Laimo v Attorney–General, National Executive Council and The State (2000) N1951

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [2000] PNGLR 109
• Date: 10 March 2000
• Year: 2000

Full Title: John Momis, Michael Ogio, Sam Akoitai and Michael Laimo v Attorney–General, National Executive Council and The State (2000) N1951

National Court: Kapi DCJ

Judgment Delivered: 10 March 2000

1 Practice and Procedure—Abuse of process of Court—The orders sought in originating summons may not be brought by notice of motion.

2 Constitutional Law—Scope and meaning of s22 of the Constitution discussed.

3 Constitutional Law—Organic Law on Provincial Governments and Local Level Governments—application of Part VI Division 3 Subdivision C to Bougainville discussed.

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Kapi DCJ: The applicants have filed an originating summons for the following orders:

"1. An Order in the form of a directive that the requirement under s10(3)(b) of the Organic Law on Provincial Governments and Local–level Governments for heads of Rural Local Level Governments in the Province to be members of the provincial assembly be waived or dispensed with in the case of the Provincial Assembly for the Bougainville Province;

2. an Order in the form of a directive that the requirement under s10(3)(c) of the Organic Law on Provincial Governments and Local–level Governments for a representative to represent the heads of urban authorities and urban councils in the province be waived or dispensed with in the case of the Provincial Assembly for the Bougainville Province;

3. an Order that the Provincial Assembly of the Bougainville Province may nominate up to ten (10) members to take the place of members of the Assembly required by s10(3)(b) and (c) of the Organic Law on Provincial Governments and Local–level Governments, three (3) members be appointed from rural areas from each open constituency and one (1) member from an urban center in any part of the Province;

4. an Order in the form of a directive that the quorum for the first sitting of the Provincial Assembly for Bougainville Province be half of the membership prescribed under s10(3)(a), (d) and (f) of the Organic Law on Provincial Governments and Local–level Governments;

5. an Order that the directives made under paragraphs (1), (2), (3) and (4) lapse either on the enactment of appropriate legislation including amendments by Parliament to make further provisions on provincial and local–level governments for the Bougainville Province, or after the conduct and declaration of elections of all heads of rural Local–level Governments in the Bougainville Province as required under the Organic Law on Provincial Governments and Local–level Governments or on the return of Writs after the 2002 general elections, whichever occurs first;

6. an Order that the provisions on the Organic Law on Provincial Governments and Local–level Governments and other laws relating to provincial government be read to conform to the directives above."

The orders are sought pursuant to s22 of the Constitution:

"22. Enforcement of the Constitution

The provisions of this Constitution that recognise rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally accepted doctrine."

At the same time, they filed a notice of motion seeking the same orders apart from paragraph 1 which seeks approval of the procedure adopted to bring this action by way of originating summons.

The notice of motion has come before me for determination.

In respect of the approval for the appropriate procedure, there are no Constitutional Regulations made under s258 of the Constitution to regulate the manner in which an application under s22 of the Constitution may be initiated in the National Court. I direct pursuant to s185 of the Constitution that the originating summons adopted in this action under the National Court Rules is appropriate for initiating the application.

So far as the balance of the motion is concerned, it seeks orders in exactly the same terms as the originating summons. Once a party chooses the procedure by way of originating summons, the matter should proceed to hearing in accordance with the National Court Rules. I suspect that these orders are sought in the notice of motion to determine the issues raised in the originating summons in a speedy manner. In my opinion, this is an abuse of the process of...