N3000

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 134 OF 2004

Between:

MARK WANI
-Plaintiff-

And:

LEADERSHIP TRIBUNAL CHAIRED BY JUSTICE N KIRRIWOM & OTHERS
-Respondent-

Waigani : Injia, DCJ
2005 : 8 September, 4 October

Judicial Review – Leadership Tribunal decision – Constitutional Office Holder – Auditor General – Decision on finding of guilt not challenged – Decision on penalty challenged – Recommendation made to Head of State for dismissal – Made few days before Leader’s term of appointment expired - Head of State endorsed recommendation after Leader’s term expired –Validity of endorsement by Head of State – Constitution, s.28(2), s.223(3)

Counsel:
P. Korowi for the Plaintiff
F. Kuvi for the Respondent

4h October 2005

INJIA, DCJ: This is an application for judicial review made under O.16 of the National Court Rules. Leave was granted on 11 May 2005.

The applicant is the former Auditor-General of Papua New Guinea. He was a Constitutional Office-holder. On 14 January 2004, a leadership tribunal chaired by Justice Kirriwom ("the Tribunal") found him guilty on certain charges of misconduct in office and recommenced his dismissal. The recommendation in the form of an Instrument of Dismissal dated 14 January 2004 ("Instrument") was prepared by the tribunal and forwarded to the Head of State for signature. The Head of State signed the instrument. The date on which His Excellency signed the Instrument is in issue.

The Applicant’s six (6) year term expired on 19th January 2004. The Applicant says the Head of State signed the instrument after his term expired and therefore, it did not apply to him. In other words, the Head of State had no power or lacked jurisdiction to dismiss him from office or acted ultra vires his powers under the relevant law.

The only factual issue before me for determination is whether the Instrument was signed by the Head of State on 14th January 2004 or on 21st January 2004. There are no issues of law for determination. If I find that the Instrument was signed on 21st, then as a matter of law, the decision contained in the Instrument must be quashed as having been made ultra vires. If I find otherwise, the decision will be sustained and this application in its entirety must be dismissed. These issues arise from the following two (2) grounds of review which are pleaded in the statement in support:

"(a)	that the "appropriate appointing authority" being the Head of State, (who at that time was His Excellency, Hon. Bill Skate), had no jurisdiction and or acted ultra vires to relevant provisions of the National Constitution (Part III.2 – Leadership Code) and Section 223(3) of the National Constitution when effecting dismissal of the Plaintiff as Auditor-General of Papua New Guinea by signing and serving the (Instrument) of Dismissal on 21st January 2004, when the Plaintiff’s full term of office (six years) as a "Leader" and "Constitutional Office-holder" expired on 19th January 2004.

(b)	that the Plaintiff was no longer a "Leader" and "Constitutional Office-holder" for purposes of Part III.2 (Leadership Code) and Section 223(3) of the National Constitution when the Notice of Dismissal was purportedly signed on 14 January 2004 and served on the Plaintiff on 21st January 2004."

Both parties accept the proposition I put to them during submissions that pursuant to s. 28(2) of the Constitution, the Head of State is the "appropriate authority" for effecting the dismissal from office of a leader, a Constitutional Office-holder in this case, who is found guilty of misconduct in office and recommended for dismissal by a Leadership Tribunal. The Head of State is required to act in accordance with the tribunal recommendation.

The only issue of fact before me is whether the Head of State signed the Instrument on 14 January or 21 January. There is no contest that the Instrument was prepared and dated by the Tribunal. The date on the Instrument in type print is 14 January – the very date the tribunal handed down its decision on penalty. When the Head of State signed the Instrument, he did not date the Instrument under his hand. There is also no dispute that the signed Instrument was hand-delivered at the offices of the Plaintiff’s lawyer on 21st January at 3:30p.m. under cover of letter dated the same.

In the circumstances, it was not clear as to what date, time and place the Head of State actually signed the Instrument. To resolve this ambiguity, this Court requested the Head of State and the official Secretary to the office of the Head of State Mr. Tipo Vuatha, to provide a written report as to the time, date and place the Instrument was signed. The Court did not receive a response from the Hon. Bill Skate (who at the material time was the Acting Governor General). The Court did receive a letter from Mr Vuatha by letter dated 22nd June 2005 in which he said "that the Acting Governor General signed the Notice of Dismissal on the 14th January 2004 15 10:00am at the State House, Konedobu, National Capital District, Papua New Guinea": see Exhibit "C". This conflicted with his earlier verbal advice to the Plaintiff’s lawyer that the Head of State signed the Instrument "today" (meaning the date on which the Instrument was personally delivered at the office of the Plaintiff’s lawyer which is 21st January) or "it could have been signed some time over the weekend or yesterday": see Mr Korowi’s affidavit sworn on 30 march 2004 Exhibit "B"). This evidence also conflicts with the transcript of proceedings of the tribunal (Exhibit "D") which shows that the tribunal handed down its decision on penalty on 14 January at 9:45am and adjourned at 10:30am). If one accepts this record as I do, it is not possible that the Head of State signed the Instrument on 14th January at 10:00am. In the circumstances, I have no hesitation in finding as a matter of inference that notwithstanding the date 14 January on the Instrument, the Instrument was signed on the 21st January and delivered to the Plaintiff’s lawyer at 3:30pm on the same day.

As to the legal implications of this factual finding, there is not much contest between the parties. In the circumstances, I reach the following conclusions:

1.	The Plaintiff’s term having expired before he was dismissed from office by the Head of State, he was no longer a leader and therefore no longer subject to the Leadership Code. Consequently, he could not be dismissed from office. The Head of State lacked jurisdiction or acted ultra vires his powers under the Leadership Code. Therefore, the decision of the Head of State made on 21st January 2004 to endorse the tribunal’s recommendation to dismiss the Plaintiff from office made on 14 January 2004, must be quashed. This means the Plaintiff is deemed to be in office (but under suspension with full entitlements) up to the expiry of his term on 19th January 2004.

2.	As for the relief sought, the Plaintiff is entitled to a declaration that he is to be paid his normal salary and other benefits for the full term of office and other entitlements due to him under law including:

(a)	Salary and other entitlements for the period from 14th to 19th January, 2004.
(b)	Retirement and other benefits and entitlements due to him upon completion of his term as a former Constitutional Office-holder under law including those under s.223(2)(b) of the Constitution, s.10 of the Organic Law on Guarantee of Rights and Independence of Constitutional Office-holders and s.4 of Constitutional Office-holders Retirement Benefits Act 1986.

3.	As I indicated to counsel during submissions, in the absence of specific evidence from both parties on the Plaintiff’s entitlements, I am unable to assess his entitlements. I will leave that to the parties to negotiate and possibly settle. The Plaintiff must quantify the entitlements and benefits referred to in paragraph 2 above, and forward it to the Defendant within 14 days from today. The Defendant must respond to the quantified claim within 14 days there from. Parties must conduct negotiations with a view to settling the Plaintiff’s entitlements. If no settlement is reached within 14 days from the time prescribed herein for the Defendant to submit its response, the Plaintiff is given liberty to apply to this Court by Notice of Motion for assessment of those entitlements and benefits.

4.	The finding of guilt on the charges of misconduct in office on which he was found guilty however still stand. Those findings are not in issue in these proceedings. The relevance, if any, of those findings to any matter of mutual interest to both parties in the future is a matter for them to consider. I must say however that that finding should not affect the Plaintiff’s benefits and entitlements referred to above except where a law expressly provides otherwise.

I make orders in terms of the above. I also award costs of the proceedings to the Plaintiff to be agreed, if not to be taxed.
___________________________________
Lawyer for the Plaintiff		:	Korowi Lawyers
Lawyer for the Respondents		:	Solicitor General