Unreported National Court Decisions
N907
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS.120 OF 1990
ELIAKIM TAENGE TOBOLTON
V
THE STATE
Waigani
Brown J
9 July 1990
INFERIOR COURTS - District Court - Order of certiorari - committal order ultra vires power - Organic Law on Ombudsman Commission Section 13 (functions of the Commission).
Held
(i)       Investment Corporation of Papua New Guinea is not a body organisation subject to the investigative powers of the Ombudsman Commission - Section 13 (a), (b) and (c).
(ii)      A summons addressed to an officer of the Corporaton to give evidence in relation to investigations into the Investment Corporation is nugatory - Section 30 (Offence of failing to appear on summons).
(iii)     The magistrates order committing such officer for trial cannot stand and an order of certiorari lies to bring such proceedings into the National Court.
Counsel
C Manek, for the State.
J Pato, for the Defendant.
REASONS FOR DECISION
BROWN J:  This application for an order of certiorari to quash the orders of the District Court at Boroko on the 5 and 11 June 1990 comes to this court by way of Order 16 Rule 1 of the National Court Rules. The applicant was committed to stand his trial for an alleged offence created by s 30 of the Organic Law on the Ombudsman Commission. The short facts were that the applicant, the Managing Director of the Investment Corporation of Papua New Guinea had been summoned to attend on the Ombudsman Commission by summons pursuant to s 18 of the Organic Law returnable on the 28 of June 1989. An officer on behalf of the Investment Corporation attended on the Ombudsman Commission in Boroko in response to the “summons to witness” instead of the Managing Director claiming that such summons was “issued in excess of jurisdiction and accordingly was ultra vires and therefore invalid”. Such a summons, according to the section may be directed to any person who in the opinion of the Commission is able to give any information relating to any matter that is being investigated by the Commission. The failure to attend pursuant to this summons is the offence created by s 30 of the Organic Law.
The matters under investigation were particularised by the Ombudsman by letter to the Chairman, Investment Corporation of Papua New Guinea dated 29 of March 1989 and were expressed as follows - “Pursuant to Section 17 (1)* of the Organic Law on the Ombudsman Commission, you are hereby notified of our intentions to investigate a complaint made by Ms Bonnie Lavari and Tafua Fearekoi former employees of the Investment Corporation of Papua New Guinea. The complainants alleged wrongful termination, underpayment of terminal entitlements and improper recruitment procedures in the recent recruitments”.
As requested by the Managing Director of the Corporation, the Ombudsman Commission wrote again on the 23 June 1989 in the following fashion “allegations of mal-administration and award of extra benefits and privileges to senior officers and members of the Board.
(i)       Preliminary investigations conducted by us so far in respect of certain institutions and sworn testimony obtained in the course of this investigation reveal that extra benefits are given to some senior officers and members of the Board.
In some cases it is also alleged that the accounting records are manipulated to conceal this benefits and expenses so that they cannot be easily detected even in audit. The Commission has reason to suspect that somewhat similar expenses are incurred by your organisation also.
In view of the serious nature of this allegations we have decided to investigate these allegations pursuant to Section 219 of the Constitution and Section 13 of the Organic Law on the Ombudsman Commission. We hereby give you notice under Section 17 (1) of the Organic Law on the Ombudsman Commission of our intention to investigate”.
The letter continued, pointing out the requirements of s 18(1) (the summons to give evidence provisions) and seeking particulars of basic salaries of appointees and employees of the Investment Corporation and further providing various schedules to facilitate the giving of such information.
The Managing Director of the Corporation replied again in effect denying the authority of the Ombudsman Commission to investigate its affairs. The Corporation as a preliminary stated:
“As you are aware the Corporation takes the view that it is essentially a private organisation and not supported by public moneys. The Corporation reports the subject to the Minister for Finance. The Corporation does not consider that the jurisdiction of the Ombudsman Commission extends to it.”
On professional advice that, as the Ombudsman Commission had no power by its charter (found in the Organic Law) to investigate the Investment Corporation, any summons purportedly issued relying on such investigation would be invalid and unenforceable, the Managing Director failed to comply with the terms of the summons.
The Magistrate found there was a prima facie case. The Managing Director had failed to comply with the summons strict terms for he had not attended on the 28 June 1989 at the Commission’s offices as required.
The applicant in this court read two affidavits without objection and tendered the lower court reasons for decision in his case. These affidavits were those of the applicant (who recounted the facts as stated above) and his lawyer (which primarily was the applicants case reduced to writing) and annexed the defendant lawyers submissions to the District Court.
The statement filed pursuant to Order 16 Rule 3(2) firstly sought an order of certiorari to quash the District Court orders and findings:
(i)       that the District Court had no jurisdiction to deal with the matter.
(ii)      that the issues of constitutional interpretation and application should not be referred to the Supreme Court and
(iii)     there was insufficient evidence to commit the plaintiff to stand trial at the next sittings of the National Court at Waigani in that (the applicant) on the 27 July 1989 failed without reasonable excuse to attend upon the office of the Ombudsman Commission when summoned to do so.
Finding as I do that the District Court had no power to entertain the proceedings and consequently that its committal orders was ultra vires I need not concern myself with ground (iii). I should say so far as ground (ii) is concerned that since I make findings of fact which effectively takes the Corporation from the ambit of the Commission’s investigatory powers, no question can arise relating to the interpretation or application of any provision of a Constitutional law.
The findings of fact are that the Corporation the subject of the investigation is not a person or body so defined by Section 13 of the Organic Law on the Ombudsman Commission.
SECTION 13 - FUNCTION OF THE COMMISSION
For the purposes of Section 219(1)(a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219(1)(b),(c),(d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:
(a)      any State Service or a member of any State Service; or
(b)      any governmental body, or an officer or employee of a governmental body; or
(c)      any other service or body referred to in Section 219(a)1 (sic) (functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section.
The Corporation is constituted by Act of Parliament (Ch No 140) and is a statutory Corporation and consequently it falls outside the definitions in sub-para (a) & (b) of s 13 above.
Section 219(1)(a) of the Constitution is the Constitutional basis for s 13 of the Organic Law.
The bodies or organisations subject to the investigative powers of the Commission are those named in sub-paras (a)(b)&(c) of s 13 of the Organic Law. Declarations by notice in the National Gazette are required in relation to bodies so described in sub-para (c) of that section.
No evidence has been tendered to the District Court of any such gazettal and counsel for the Commission did not allude to any such gazettal before me. Argument both in the District Court and before me as to whether or not the Corporation:
(a)      is wholly or mainly supported out of public moneys of Papua New Guinea; or whether
(b)      all of or the majority of the members of the controlling body of the Corporation are appointed by the National Executive,
are not on point. Section 219 of the Constitution makes plain that the Commission investigate conduct on the part of (a body) specified by or under an Organic Law.
The Organic Law in s 13 specifies the bodies and in sub para (iii) relates that specification back to the characterisation of bodies in Section 219(1)(a) but further requires gazettal of such a body to comply with the terms of the section of the Organic Law. It follows that the Ombudsman Commission has no power to investigate whether on its own initiative or on complaint by a person affected any conduct of the Investment Corporation of Papua New Guinea or its employees. It is not such a body which has been gazetted.
In his reasons for decision the Magistrate was led into error by asking himself a question in this form (page 2 of Reasons).
“5.      Was the law intended to exclude such bodies such as Investment Corporation?
Ans.    This Court does not think so.”
The Ombudsman Commission has no inherited common law powers, being as it is purely a creation of the Constitution and Organic Law.
The question more properly put is whether the power to investigate “includes” investigation of the Corporation for there are no “general” powers (common law or otherwise in the Organic Law) to investigate in the Commission but only those specifically given it.
The answer must be “no” and consequently the summons to witness under s.18 is ultra vires the Ombudsman’s powers. I find that I have jurisdiction to make orders in the nature of certiorari and I follow the reasoning of McDermott J in the State -v- Rush Ex parte Rush (1984) PNGLR 124.
Since the summons is nugatory the proceedings alleging an offence under s 30 of the Organic Law are without foundation. I accordingly quash the order of the magistrate for trial of this applicant.