SCA No. 61 of 2006; William Powi (Acting Administrator for Southern Highlands Province) and Sir Michael Somare (in his capacity as Chairman for and on behalf of the members of the National Executive Council) and Joshua Kalinoe (in his capacity as Chairman of the Central Agencies Co-coordinating Committee Secretariat) and The Independent State of Papua New Guinea v Southern Highlands Provincial Government and Hon. Nipa Hami Yawari (Provincial Governor of Southern Highlands Province ) and Brian Pebo (Provincial Administrator For Southern Highlands Province) 2006 SC844

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Jalina Gavara-Nanu
• Judgment Date: 04 August 2006
• Judgment Number: SC844
• Year: 2006

Full Title: SCA No. 61 of 2006; William Powi (Acting Administrator for Southern Highlands Province) and Sir Michael Somare (in his capacity as Chairman for and on behalf of the members of the National Executive Council) and Joshua Kalinoe (in his capacity as Chairman of the Central Agencies Co-coordinating Committee Secretariat) and The Independent State of Papua New Guinea v Southern Highlands Provincial Government and Hon. Nipa Hami Yawari (Provincial Governor of Southern Highlands Province ) and Brian Pebo (Provincial Administrator For Southern Highlands Province) 2006 SC844

High Court: Jalina, Gavara-Nanu

Judgment Delivered: 4 August 2006

SC 844

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 61 OF 2006

BETWEEN:

WILLIAM POWI – Acting Administrator for Southern Highlands Province

- First Appellant-

AND:

SIR MICHAEL SOMARE in his capacity as Chairman for and on behalf of the members of the National Executive Council

- Second Appellant-

AND:

JOSHUA KALINOE in his capacity as Chairman of the Central Agencies Co-coordinating Committee Secretariat

- Third Appellant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

- Fourth Appellant-

AND:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

- First Respondent-

AND:

HON. NIPA HAMI YAWARI – PROVINCIAL GOVERNOR OF SOUTHERN HIGHLANDS PROVINCE

- Second Respondent-

AND:

BRIAN PEBO - PROVINCIAL ADMINISTRATOR FOR SOUTHERN HIGHLANDS PROVINCE

- Third Respondent-

Waigani: Jalina, Gavara-Nanu

& Kandakasi JJ

2006: 26 July, 4 August

PRACTICE & PROCEDURE – Application to vary or discharge orders of single judge Supreme Court –Jurisdictional basis - Specific provision made under relevant and applying legislation – Applicant deliberately decided not to utilize available avenue or provisions and choosing instead to use s. 155 (4) of the Constitution – Application amounts to an abuse of the Courts process and misconceived – Court has power to dismiss such proceedings – Application dismissed – Sections 5 (3) and 10 (2) of the Supreme Court Act – Section 155(4) of the Constitution.

JURISDICTION – Jurisdiction to vary or discharge interim orders or directions of a single judge of the Supreme Court – Full Court has jurisdiction at the time of hearing and determining the substantive matter unless there is serious prejudice occasioned to the parties rights in the substantive matter and urgent intervention is required - Sections 5(1)(a) and (3) and s 10 (2) Supreme Court Act.

WORDS & PHRASES – “Supreme Court” or “Court” – Unless the contrary intention is clearly stated, it means the full Court of the Supreme Court and not a single judge of the Supreme Court who may constitute the Supreme Court – Sections 1 and 5 and 10 Supreme Court Act .

Cases Cited:

The State v. Donald Poni (22/09/04) N2663.

Re Application by Anderson Agiru (08/10/01) SC671.

Application of John Mua Nilkare (15/04/97) SC536.

Avia Aihi v. The State [1981] PNGLR 81.

Re Application of Louise Autsila Ainie on Behalf of The Rarai Village Ugauga Sub–Clan of Ikoiko Clan, Central Province for Leave for Judicial Review (14/04/04) N2533.

Kiau Nikints v. Moki Rumints [1990] PNGLR 123.

Samson Dacany v. Noah Taia of The National Fisheries Authority (13/12/02) N2316.

SCR No 2 of 1981; Re S19(1)(f) of the Criminal Code (Ch262) [1982] PNGLR 150.

Bill Skate and Peter O'Neil v. Jeffrey Nape, Speaker of Parliament (09/07/04) SC754.

Norah Mairi v. Alkan Talolo & Others [1976] PNGLR 59.

SC Review No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170.

The Independent State of Papua New Guinea v. John Tuap (27/10/04) SC765.

Wau Ecology Institution v. Registrar of Companies (12/08/05) SC794.

SCR 8 of 2003; Application by Anderson Agiru (11/04/03) SC704.

Counsels:

M. Tamutae, for the Applicant/ Third Respondent.

P. Korowi, for the First and Second Respondents.

K. Naru, for the First Appellant/First Respondent.

S. Singin, for the Second Appellant/Second Respondent.

M. Kias, for the Third and Fourth Appellant/ Third and Forth Respondent.

4 August, 2006

1. BY THE COURT: By an amended notice of motion filed on 24 July 2006, the Third Respondent/Applicant (applicant) seeks a number of orders or reliefs which effectively seek to vary or otherwise discharge orders made by Justice Los as a single judge of the Supreme Court on 12 July 2006. The applicant claimed there was some urgency in the matter and that caused the Chief Justice to constitute this Court as a special Supreme Court to deal with the application.

Issue - Jurisdiction

2. The Court convened and started to hear the application on Wednesday 26 July 2006. The first issue the Court had to deal with was the preliminary issue of the Court’s power to deal with the application in the way asked for by the applicant. His Lawyer, Mr. Tamutai submitted that the Court has jurisdiction under s. 155(4) of the Constitution to hear and determine his client’s application. In the course of his submissions he abandoned reliance on s. 5 (3) of the Supreme Court Act

1 Chapter 37.

1 (the Act). He also abandoned most of the reliefs sought in his client’s amended motion. That effectively left his client’s application to only seeking a variation or discharge of the orders made by Los J, arguing that, His Honour, did not have the jurisdiction to make such orders. On closer enquiry by the Court however, the applicant narrowed down his concern to only Los J’s decision to allow the appellant, Mr. Powi to act in the position of Administrator of the Southern Highlands Province, pending a determination of the substantive appeal.

3. The Appellants/Respondents argue that s. 155(4) does not apply in the light of specific provisions being made in the Supreme Court Act for the kind of relief sought by the applicant. Further, they submit that the applicant has failed to make out a case even under s. 155 (4) in order to enable this Court to grant the kind of relief sought by the applicant. Therefore, they submit that the application is an abuse of the Court’s process and is without any merit. Hence they submit that, the application must be dismissed.

4. From these arguments, there are two issues for us to determine. These

are:

1. Is s. 155(4) of the Constitution applicable to the particular circumstances of this case? and

2. If the answer to the first issue is in the affirmative, has the applicant made out a case for the application of s. 155 (4) of the Constitution?

Relevant Facts or Background

5. In order for us to properly appreciate these issues and determine them, it is necessary for us to appreciate the factual background to the application. From the material before us, we note that the relevant facts and or chronology of events start with the National Executive Council (NEC) on 17 May 2006, making decision No. 96 of 2006 by which, the appointment of Mr. Brian Pebo as Administrator of Southern Highlands Province was revoked and appointed Mr. William Powi as Acting Administrator of that Province. At the same time, the NEC appointed an Independent Investigation Team to investigate into the affairs of the Southern Highlands Province. This was confirmed by gazettal on 23 May 2006, in the National Gazette No. G104 of 2006.

6. It seems, Mr. Pebo continued to occupy and exercise the powers and functions of the Provincial Administrator of the Southern Highlands Province. Mr. Powi therefore, took out proceedings OS No. 370 of 2006 - William Powi v. Brian Pebo out of the National Court in Waigani on 25 May 2006. On the same day, he applied for and obtained interim ex parte restraining orders against Mr. Pebo before Justice Lay. Those orders restrained Mr. Pebo from exercising the powers and functions of the Provincial Administrator for Southern Highlands Province. The orders were made returnable on 8 June 2006 at 9:30 am.

7. On 26 May 2006, Mr. Pebo took out proceedings OS No. 374 of 2006 out of the National Court then circuiting in Mendi, seeking a review of the decision revoking his appointment and appointing Mr. Powi as acting Southern Highlands Provincial Administrator. By that time, Mr. Pebo, was not served with the orders of the National Court sitting in Waigani. On the same day of the filing of his proceedings, Mr. Pebo and his lawyers appeared before His Honour Hinchliffe J., and obtained interim injunctive orders against Mr. Powi and the other appellants/respondents before us. Those orders were returnable before the National Court in Mt. Hagen on 31 May 2006.

8. The proceedings issued initially out of the National Court on circuit in Mendi did not name Mr. Powi as a party, although he was directly affected as the incoming acting Provincial Administrator for the Southern Highlands Province. Eventually, Mr....