SCA NO. 86 OF 2010; Hon. Havila Kapo, MP, Member for Gulf Provincial Seat v Hon Mark Maipakai, MP, and HonTitus P Bombom, MP, and Hon Charles Maiu MPA, President Ihu RLLG, and Hon Keith Fereapo MPA, President Kerema Urban LLG and Hon Ika Oavera MPA, President Central Kerema LLG; and Hon Robert Paiva MPA, President East Kerema RLLG, and Hon Henry Amo MPA, President Taure/Lakekamu RLLG, and Hon Richard Panama MPA, President Kotidanga RLLG and Hon Wilson Baidu MPA, President West Kikori RLLG, And Hon Nun Sumba MPA, President East Kikori LLG, and Hon Jonah Kairi MPA, President Baimuru RLLG and Hon John Alala MPA, President Kaintiba RLLG and Simon Malara (2010) SC1067

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 05 August 2010
• Court: Supreme Court
• Citation: (2010) SC1067
• Year: 2010
• Judgement Number: SC1067

Full Title: SCA NO. 86 OF 2010; Hon. Havila Kapo, MP, Member for Gulf Provincial Seat v Hon Mark Maipakai, MP, and HonTitus P Bombom, MP, and Hon Charles Maiu MPA, President Ihu RLLG, and Hon Keith Fereapo MPA, President Kerema Urban LLG and Hon Ika Oavera MPA, President Central Kerema LLG; and Hon Robert Paiva MPA, President East Kerema RLLG, and Hon Henry Amo MPA, President Taure/Lakekamu RLLG, and Hon Richard Panama MPA, President Kotidanga RLLG and Hon Wilson Baidu MPA, President West Kikori RLLG, And Hon Nun Sumba MPA, President East Kikori LLG, and Hon Jonah Kairi MPA, President Baimuru RLLG and Hon John Alala MPA, President Kaintiba RLLG and Simon Malara (2010) SC1067

Supreme Court: Injia, CJ

Judgment Delivered: 5 August 2010

SC1067

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 86 OF 2010

BETWEEN:

HON.HAVILA KAPO, MP

Member for Gulf Provincial Seat

-Appellant-

AND:

HON. MARK MAIPAKAI, MP

First Respondent

HON.TITUS P BOMBOM, MP

Second Respondent

HON. CHARLES MAIU MPA, President Ihu RLLG

Third Respondent

HON. KEITH FEREAPO MPA, President Kerema Urban LLG

Fourth Respondent

HON. IKA OAVERA MPA, President Central Kerema LLG

Fifth Respondent

HON. ROBERT PAIVA MPA, President East Kerema RLLG

Sixth Respondent

HON. HENRY AMO MPA, President Taure/Lakekamu RLLG

Seventh Respondent

HON. RICHARD PANAMA MPA, President Kotidanga RLLG

Eighth Respondent

HON. WILSON BAIDU MPA, President West Kikori RLLG

Ninth Respondent

HON. NUN SUMBA MPA, President East Kikori LLG

Tenth Respondent

HON. Jonah Kairi MPA, President Baimuru RLLG

Eleventh Respondent

HON. JOHN ALALA MPA, President Kaintiba RLLG

Twelfth Respondent

SIMON MALARA

Thirteenth Respondent

Waigani: Injia, CJ

2010: 5th August

SUPREME COURT – Practice and Procedure - Application for stay and interim relief – Cases of private law and public law – Principles – Supreme Court Act, s 5(1)(b) & s19.

CONSTITUTIONAL LAW- Public law - Interim relief – Dismissal of Governor and election of new Governor by Provincial Assembly – Reinstatement of Governor of Province – Reinstatement of members of Provincial Assembly following decision of the Supreme Court on Constitutional Reference - Principles- Constitution, s 19 (2); Organic Law on Provincial Governments and Local Level Governments, s 20 & s 21; Provincial Administration Act 1997, s 12 (a).

Cases cited:

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853

Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2000] PNGLR 279

Issac Lupari v Sir Michael Somare (2008) SC 2008

Norah Mairi v Alkan Tololo [1976] PNGL 59

PNG Air Traffic Controllers Association Incorporated v Civil Aviation Authority (2008) SC 950

R v Secretary for Transport, ex’p. Factortame Ltd (No.2) [1991] 1 A.C. 603, 672-67

Sir Pato Kakaraya v The National Parliament (2004) SC756

Special Reference No. 1 of 2009 Reference Pursuant to s 19 of the Constitution, Reference by the Ombudsman Commission of Papua New Guinea, Re Sections 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10 )Law 2006 (2010) SC 1058

Wapua v Lakopa (2009) SC 1048.

Counsel:

S Soi, for the Appellant

No appearance , for the First Respondent

G Epor, for the Second – Thirteenth Respondents

5th August, 2010

1. INJIA, CJ: The appellant applies for stay of proceedings and interim orders issued by the National Court on 16th July 2010, pursuant to s 19 of the Supreme Court Act (the Act). If stay is granted, then he seeks interim orders under s 5 (1) (b) of the Act. The application is contested by the second to the thirteenth respondents (the respondents). The application is made pending determination of an appeal filed against the interim orders.

2. Both parties filed affidavits and their counsel made submissions which I have considered.

Circumstances of the case

3. The appellant is the Member of the National Parliament (MP) representing the Gulf Provincial electorate. He was elected in the general elections in 2007. By virtue of s 17 of the Organic Law on Provincial Governments and Local-Level Governments (OLPLLG) , he is the Governor of the Gulf Province (GP) and chairman of the Provincial Executive. By virtue of s 14 of OLPLLG, he is also the Chairman of the Gulf Provincial legislature or Provincial Assembly (GPA).

4. The first and second respondents are MPs representing the two open electorates in GP (Kikori Open electorate and Kerema open electorate respectively). By virtue of s 10 (3) (a) of the OLPLLG, they are also members of GPA.

5. The thirteenth respondent is the Clerk of GPA but the appellant disputes his appointment and says Mr Maravilla is the duly appointed Clerk.

6. With regard to the third to twelfth respondents (Council Presidents), between 2006 and 4th June 2010, pursuant to Sections 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10 )Law 2006, the GPA comprised of MPs and nominated members only. As a result of this amendment law, the Presidents of Rural Local-Level Governments, Urban Local -Level Governments and authorities were removed from the GPA.

7. On 4th June 2010, in SC Reference No. 1 of 2009 Reference Pursuant to s 19 of the Constitution, Reference by the Ombudsman Commission of Papua New Guinea, Re Sections 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10 )Law 2006 (2010) SC 1058, the Supreme Court invalidated ss 1 and 2 of Amendment No. 10. The effect of this decision was that the Council Presidents were restored to office as members of the Provincial Assemblies in each of the nineteen provinces throughout Papua New Guinea. Since the decision, the national government and provincial government authorities have been giving effect to the decision of the Supreme Court.

8. The formal swearing-in of the Council Presidents as members of GPA was delayed because the provincial government authorities sought from the national government clarifications on the process to be followed in reinstating the council Presidents. A meeting of the GPA held on 17th June 2010 was adjourned to 28th June 2010 for this reason. On 28th June 2010, the respondents requested an additional meeting to be held on 30th June 2010. The respondents attended the meeting on 30th June 2010, appointed the fourth respondent to chair the meeting of GPA and swore - in the third to the twelfth Council Presidents. The meeting was then adjourned to 30th June for a vote on the motion. On 30th June, the motion was debated and voted upon. The appellant was voted out of office and the second respondent was elected as the new Governor of the province.

9. It appears on 28th June, and 7th July, the appellant conducted meetings of the GPA without the presence of the respondents.

10. The tussle for control of GPG appears to have been deepening when the appellant instituted proceedings in the National Court at Waigani.

11. In National Court proceedings OS No. 354 of 2010 filed on 19th July 2010, the appellant sought declaratory orders, inter alia, that the meetings of the GPA convened by the respondents and resolutions reached were done in breach of relevant provisions of the OLPLLG and Provincial Governments Administration Act. He moved a motion seeking interim orders, inter alia, to restore him to office, prevent the second respondent from assuming his new office and the respondents from convening further meetings of GPA. The National Court dismissed the application and instead granted other interim orders against the appellant which are the subject of this appeal. The orders are as follows:

(1) All reliefs sought in the notice of motion filed by the plaintiff on 2 July 2010 are refused.

(2) For the avoidance of doubt, the first to the 12th defendants shall be regarded as members of the Gulf Provincial Assembly and the second defendant shall be regarded as Governor of Gulf Province until further order of the National Court pending the determination of the amended originating summons.

12. In those proceedings, the main points in contention are the following:

(1) Validity request made by the respondents for an “additional meeting” on 30th June 2010, pursuant to s 12 (a) of the Provincial Governments Administration Act 1997.

(2) Validity of the meeting of GPA convened on 30th June 2010 and resolutions made in that meeting.

(3) Validity of the swearing - in of Council Presidents in meeting of GPA conducted on 30th June 2010.

(4) Validity of the notice of vote of no confidence in the appellant given on 28th June 2010, debated and voted upon by GPA on 30th June 2010, pursuant to s 20 of OLPLLG.

(5) Election of the second respondent as the new governor of GP, pursuant s 21 of OLPLLG.

13. There was evidence produced in the National Court to show that a request for an additional meeting of the GPA was made by the respondents to the appellant to convene a special meeting of GPA under s 12 (3) (a) of the Provincial Governments Administration Act 1997. Section 12 provides:

12. Meetings of a Provincial Assembly.

(1) A Provincial Assembly shall...