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Zeming v Justice Hinchliffe [2006] PGNC 30; N2998 (6 February 2006)

N2998

PAPUA NEW GUINEA

[IN THE NATIONAL COURT JUSTICE]

OS 239 OF 2003

BETWEEN

MAO ZEMING
Plaintiff

AND

JUSTICE TIMOTHY HINCHLIFFE, CBE
First Defendant

AND

FRANK MANUE
Second Defendant

AND

PATRICK MONOULUK
Third defendant

Waigani: Injia, DCJ

2006: January 18, 27
February 6

JUDICIAL REVIEW – Leadership tribunal’s Decision – Grounds - Findings of improper Conduct –– Breach of procedure prescribed by s.21(6), s.27(4) and s.29 of Organic Law on Duties and Responsibilities of Leadership – Whether documents contained in Statement of Reasons admissible "evidence" – Whether Leader’s Statement of Reply made to Ombudsman Commission in the course of its investigations contained in Statement of Reasons is admissible "evidence" - Whether tribunal erred in considering Leader’s Statement of Reply which was not formally admitted into evidence – Whether error sufficient for exercise of discretion on judicial review to quash decision of tribunal – Relevant Principles – Interpretation of s.21(6), s.27(4), s.29 of OLDRL and combined effect thereof.

Cases cited:
In Re Timothy Bonga N1522 (1997)
Kekeko v Burns Philip (PNG) Ltd [1989-89] PNGLR 122

Counsel:
H. Leahy for the Plaintiff
H. Kiele for the Respondents

6 February 2006

INJIA, DCJ: The Plaintiff is the former member of the National Parliament for the Tewae-Siassi Open Electorate. He applies for judicial review of the decision of the Leadership Tribunal, constituted by the Respondents ("the Tribunal") to recommend his dismissal after finding him guilty on nine of twelve allegations of misconduct in office. The dismissal took effect when the Head of State accepted the recommendation.

There are four (4) grounds of review which challenge the procedure employed by the Tribunal to receive and consider the "evidence" in the form of Statements of Reasons prepared by the Ombudsman Commission which was presented to the Tribunal by the Public Prosecutor. The grounds are:

1. The Leadership Tribunal erred in law in that it breached the provisions of section 21 (6) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) in that the Tribunal admitted evidence of a statement made by the Plaintiff.
   
2. The Leadership Tribunal erred in law in that it admitted into evidence two volumes of a book of exhibits compiled by the Ombudsman Commission during the course of its investigation thereby being in breach of section 21(6) of the OLDRL.
   
3. The Leadership Tribunal erred in law in that it made findings of guilt in respect of Allegations 1(i) and 1(iv) and 4, 5, 7, 8, 9, 10, 11 and 12 when there was no evidence before the Tribunal such that it could make those findings of guilt.
   
4. The Leadership Tribunal erred in law on its application of the principles of natural justice by wrongly admitting and accepting the Statement of Reasons of the Commission together with the exhibits as evidence.
   

In support of the application, the plaintiff relies on three affidavits, two of the plaintiff sworn on 13 and 30 May 2003 respectively and one of his counsel, Mr Leahy sworn on 12 September 2005. The Respondents have not filed any affidavit before this Court but rely on the affidavit of Mr D L Cannings (as he then was) which was before the Tribunal. Both counsel filed written submissions and made oral arguments.

I have considered the evidence and submissions. The issues to be decided are substantially legal.

There is no dispute on the procedure followed by the Tribunal in receiving the documentary and oral "evidence" put before it by the Public Prosecutor. In summary, what transpired is this:

1. On 24 February 2003 –
   

(a) The tribunal commenced its sittings.

(b) The Prosecutor formally presented twelve (12) allegations of misconduct ("charges") prepared by the Public Prosecutor together with two (2) volumes of Statement of Reasons prepared by the Ombudsman Commission. The proceedings were then adjourned to 5 March 2003 for the plaintiff’s counsel to study the documents.

2. On 12 March 2003 –
   
   • (a) The 12 charges were put to the plaintiff and he denied all the charges.
     
   • (b) The Prosecutor sought to "tender into evidence" the affidavit of counsel for the Commission, Mr D L Cannings (as he then was), sworn on 11 March 2003, to which reference was made to 108 sets of documents.
     

In paragraph 5 of his affidavit, Mr Cannings made direct reference to his involvement in supervising the drafting of the Statement of Reasons and compilation of the documents appended to the Statement of Reasons. The tribunal chairman asked counsel for the leader, Mr H Leahy if he objected to the tender of the affidavit and he replied: "No Objection, Mr Chairman." Consequently, the affidavit which was previously served on the leader, was formally admitted into "evidence".

(c) In paragraph 6 of Mr Cannings’ affidavit, he said he was listing the 108 documents appended to the Statement of Reasons, for "the purposes of verifying those documents and bringing them into evidence".

(d) The Prosecutor made direct reference to paragraph 6 of Mr Cannings’ affidavit and the documents appended to the two (2) volumes of Statement of Reasons. He then sought to "formally tender" all those documents described by Mr Cannings.

(e) Mr Leahy objected to the tender of these documents on two basis:

• (i) Mr Leahy submitted the date stated by Mr Cannings in paragraph 3 as 7 May 2002 being the date of referral by the Ombudsman Commission to the Public Prosecutor, was inconsistent with the date of the charge document dated 20 February 2002, in that the latter date predated the former. Therefore, the tribunal lacked jurisdiction to deal with the charges. The Prosecutor responded by submitting the figure or year 2002 was a typographical error and the tribunal should correct it by deleting the figure or year 2002 and replacing it with the figure or year 2003.
  

Mr Leahy submitted the tribunal lacked jurisdiction to amend the charge document.

(ii) Mr Leahy submitted the referral by the Ombudsman Commission to the Public Prosecutor was made against the weight of the Statement in reply made by the leader to the Ombudsman Commission during its investigations. This Statement was contained in the Statement of Reasons. If his reply was duly considered by the Commission and given sufficient weight the referral could not have occurred.

The Prosecutor submitted the tribunal lacked jurisdiction to inquire into the referral by the Ombudsman Commission.

(f) The tribunal overruled both objections and gave brief reasons.

3. On 12 March 2003 – 13 March 2003 –

(g) The Prosecutor relied on the affidavit of Mr Cannings and marked out the affidavit and sought to formally tender 101 of the 108 sets of documents. The tribunal accepted each document into evidence and marked them as exhibits. The plaintiff’s statement of reply which had some 42 appended documents, was not one of those documents sought to be formally tendered and they were not formally admitted into evidence and marked as exhibit.

(h) On 13 March 2003, the prosecution called Mr Iamo Ila, Director of Office of Rural Development. He gave oral evidence and was cross-examined by Mr Leahy.

4. On 13 March 2003 – 14 March 2003 -

The prosecution called Manasupe Zurenuoc who gave oral evidence. He was cross-examined by Mr Leahy.

5. On 14 March 2003 – 17 March 2003 –

The plaintiff called five witnesses who gave oral evidence, namely Tom Horik, Benson Suwang, Asa Zeming, John Gebo and Jason Som. They were cross-examined by the prosecution. The plaintiff did not give oral evidence.

6. On 21 March 2003 – 4 April 2003 –

Both counsel made submissions.

7. On 8 April 2003 –

The tribunal handed down its decision on verdict. The tribunal found the leader not guilty on three counts and found him guilty on nine counts.

Of the four grounds of review ground 1 is on its own and 2, 3 and 4 are related. Ground 1 is straightforward. Ground 2, 3 and 4 raise the same argument. Ground 2 was abandoned at the hearing because it was repetitive of ground 1. All these grounds show the essence of the plaintiff’s case to be one of challenge to the admissibility of the evidence in the form of documents appended to the Statement of Reasons.

In relation to ground 1, Mr Leahy concedes that he did not specifically object to the tender of the documents in the Statement of Reasons on grounds such as under s 21(6) of OLDRL or under ordinary rules of evidence. He also concedes that he did not object to Mr Cannings’ affidavit which made reference to the plaintiff’s Statement of Reply together with the appended documents contained in Volume 2 of the Statement of Reasons. Nonetheless, he submits a tribunal conducting its own inquiry should, as a matter of law, be cognizant of its duty under the law and exercise its discretion to exclude those documents under s. 21(6) under OLDRL. Instead, the tribunal considered the plaintiff’s statement of reply in arriving at its decision without giving the plaintiff opportunity to be heard on it and thereby denied natural justice to the plaintiff.

In relation to ground 3 and 4 which relate to various exhibits contained in the two volumes of Statements of Reasons tendered through Mr Cannings’ affidavit, Mr Leahy submits that they were inadmissible evidence, that they were wrongly admitted into "evidence", therefore, there was no proper evidence before the tribunal for the tribunal to consider and determine the charges. Even if they were properly before the tribunal, direct/oral evidence was not called to support the documentary material. Reliance is placed on the National Court decision in Timothy Bonga N1522 (1997) in which Kapi DCJ (as he then was) held that the Statement of Reasons is not admissible before the tribunal by virtue of s 21(6) of the OLDRL; however the prosecution may call the same witnesses to give the same evidence by virtue of s 29 of OLDRL.

Ms Kiele submits the Statements of Reasons were properly presented to the tribunal and the relevant documents were properly tendered and admitted into evidence without objection. They became evidence before the tribunal and it was entitled to rely on them to make appropriate findings. In any case, the tribunal did not solely rely on documentary evidence from the Statement Reasons. It relied on oral evidence from other relevant witnesses. The plaintiff was given every opportunity to contest the evidence and the case against him and was heard before a decision was made. He was not denied natural justice. The evidence supports the findings on the 9 allegations and the findings should not be disturbed by this Court.

In my opinion, there is little case law on the combined effect of s 21(6), s 27(4) and s 29, all of which are procedural provisions relevant to the present case. For this reason, I wish to re-state some of relevant principles and enunciate some new principles, for the guidance of leadership tribunals proceedings in the future.

The procedure to be followed by the Tribunal in conducting an inquiry is prescribed by s 27(4) of OLDRL. The Tribunal is given wide powers to conduct "due inquiry into the matter... without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper." Although the proceedings before the tribunal are not "judicial proceedings", it is "subject to the principles of natural justice." See s 27(4) of OLDRL and s 28(5) of the Constitution. The principles of natural justice are those found at common law, which are adopted under s 59 of the Constitution, the minimum of which is the duty to act fairly and in principle, to be seen to act fairly. One of two fundamental principles of natural justice is the principle that a man accused of wrongdoing and brought before a court or tribunal of law must be afforded an opportunity to be heard in his own defence. This means he must be afforded reasonable opportunity to contest the prosecution evidence or material sought to be placed before the tribunal against him, by either resorting to use of rules of admissibility of evidence or once the evidence is admitted, to contest the prosecution evidence by cross-examination of witnesses or by calling his own witnesses. Proceedings conducted by the tribunal in breach of principles of natural justice stand liable to be quashed upon review by this Court. These principles are well settled.

Section 21(6) is a procedural rule of evidence on admissibility. Section 21(6) provides:

"Except on the trial of any person for perjury in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Commission or other authority is admissible in evidence against any person in any court or at any inquiry or any other proceedings, and no evidence in respect of proceedings before the Commission or other authority shall be given against any person."

This section is wide enough to include all witnesses’ Statements including documents supplied by witnesses, contained in the Statement of Reasons prepared by the Ombudsman Commission. The decision in Timothy Bonga’s case is consistent with s 21(6) in that Statement of Reasons prepared by the Commission and presented by the Prosecution to the tribunal at the commencement of its inquiry, is inadmissible evidence. However, the Statement of Reasons is the very document from which the Public Prosecutor drafts the charges and although it is not "evidence" before the tribunal, it is "presented" to the tribunal together with the charges to found the tribunal’s jurisdiction. I accept Ms Kiele’s submission on this point.

Section 21(6) applies to inquiries or proceedings before the Ombudsman Commission. Sections 27(4) and s 29 which apply to proceedings before a tribunal, are also relevant to s 21(6).

Section 27(4) provides:

"The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice."

Section 29 provides:

"Section 21 applies, with the necessary modifications, to the production of documents, papers or things to a tribunal in the same way as it applies to the Ombudsman Commission."

By virtue of s 29 OLDRL s 21(6) must to be modified to render consistency with s 27(4). I would interpret the combined effect of s 21(6), s 27(4) and s 29 this way: Section 21(6) is an important procedural provision. It is a constitutional provision, designed to not only protect the secrecy and integrity of the administrative inquiry process in the Ombudsman Commission, but also to protect the rights of the leader - to ensure there is a fair trial or inquiry by a Court of law or quasi-judicial tribunal of a leader investigated by the Commission. It is worded in mandatory terms. By virtue of s 21(6), there is no discretion in the tribunal, of its own volition, to admit or accept statements of persons or documents in a Statement of Reasons as "evidence" except – (1) where the leader expressly consents to the admission of the document in "evidence" before the tribunal, or (2) the tribunal admits a document sought to be tendered by the prosecution. A breach of this rule may vitiate the entire proceedings. Judicial review is available to remedy this kind of procedural breach: Kekedo v Burns Philp (NG) Ltd [1988-89] PNGLR 122.

In the case of documents contained in the Statement of Reasons, they are not "evidence" before the Tribunal. However, for practical convenience and to avoid unnecessary cost, the prosecution may wish to tender before the tribunal as "evidence" any of the documents appended to the Statement of Reasons. Where the prosecution intends to rely on any document contained in the Statement of Reasons, it is open for the prosecution to seek or apply to have each and every document tendered into "evidence" before the tribunal in order for the tribunal to determine their admissibility and more importantly, to give opportunity to the leader to raise any objection as to their admissibility. If the leader objects to the tender of a particular document under some statutory basis such as s 21(6) of OLDRL or under some established principle on admissibility of evidence such a hearsay and the tribunal upholds the objection, the document is ruled inadmissible; it is not admitted into evidence; a party cannot rely on it; and the tribunal cannot consider it in its deliberation on the charges. If the objection is overruled, the document is admitted into "evidence" by the tribunal; it is formally marked or registered as an exhibit; the document becomes "evidence" before the Court; the parties are then at liberty to rely on it or to attack its reliability or weight and the tribunal is entitled to rely on that evidence to make its findings of fact and reach its conclusions.

If the plaintiff does not to object at all either by design or inadvertence, no issue of admissibility arises, unless the tribunal in the exercise of its inherent discretion conferred by s 27(4) raises the issue with the parties and after hearing them, determine the issue of admissibility.

Whether the leader is represented by counsel or not, the onus is on the leader to raise the objection when the document is sought to be tendered by the prosecution. The tribunal must facilitate that opportunity for objection to the tender of the document. If the tribunal fails to do that, this may amount to a fundamental breach of the principles of natural justice within the meaning of s 27(4). Judicial Review is available to quash such decisions made in breach of the principles of natural justice.

Whilst it is true that the tribunal conducts its own investigations and its proceedings are not judicial, the tribunal sits as a quasi-judicial body, as an impartial and neutral body, and its proceedings are governed by principles of natural justice. Given the prosecution role conferred on the Public Prosecutor by the Constitution and the OLDRL, the practice has developed that the proceedings before a leadership tribunal are conducted in an adversarial manner and the onus to contest the evidence sought to be adduced by both parties primarily falls on the parties and not the tribunal. Thus the onus is primarily on the leader to invoke s 21(6) or other principles on admissibility of evidence. The leader cannot blame the Tribunal for not invoking s 21(6) to exclude documents in the Statement of Reasons. Whilst it is also true that the tribunal retains ultimate control of the proceedings to ensure that principles of natural justice are observed throughout the proceedings, this does not necessarily extend to the tribunal taking over the function of prosecution or defence, with a view to unduly aiding any party or unduly attacking the evidence of any party.

Section 27(4) is a general procedural provision which relates to the tribunal’s strict observance of ordinary rules and principles of practice, procedure and evidence. In my view, s 27(4) is not intended to affect the operation of s 21(6); if it were so intended, s 27(4) would have expressly said so.

Section 27(4) gives the tribunal wide powers on matters of practice and procedure. In terms of evidence the tribunal has wide discretionary powers to admit or reject evidence on such grounds as it sees fit. It is not required to strictly observe technical rules of procedure and evidence.

I have stated that there is an inherent discretion in the tribunal to consider the admissibility of a document contained in the Statement of Reasons even if its admission is not objected to by a party. This is an inherent discretion which comes with the wide discretion given to the tribunal by s 27(4) but it must be exercised with caution and limited to exceptional cases in which the admissibility of vital and relevant material evidence which should, as a matter of law, be placed before the tribunal or material or evidence which are not admissible in law and should be excluded, is overlooked by a party and appropriate action is not taken to admit or exclude that material or evidence. The admissibility of a statement of a person referred to in s 21(6) falls within the latter exception. In the end, the tribunal is required to assess the whole evidence and form a judgment on whether the charges have been proved to its satisfaction.

In the present case, the plaintiff has not challenged the tribunal’s ruling on the two grounds of objection. Also, it is clear that he elected not to object to the tender of the documents in the Statement of Reasons identified by Mr Cannings either under s 21(6) or under rules of evidence.

I will deal with grounds 3 and 4 first. My survey of the procedure employed by the tribunal in receiving the documentary "evidence" identified by Mr Cannings in his affidavit as contained in the two volumes of Statement of Reasons and the conduct of proceedings set out above, shows that the Tribunal not only relied on those documentary evidence but also on the oral evidence given by a number of witnesses for both parties. When these documents were in evidence before the tribunal, it was open for the tribunal to assess the evidence and make findings on them. As to whether additional direct or oral evidence should have been called to support those documentary evidence, is a decision for the Prosecutor to make. That is a matter of weight for the tribunal to decide. I am satisfied that the leader through his counsel actively participated in the whole proceedings and was given every opportunity to be heard on those documentary evidence sought to be tendered by prosecution. In his considered opinion, the plaintiff’s counsel chose not to object to the tender of these documents under s 21(6) or on other admissibility grounds. The plaintiff cannot now complain of his client being denied the opportunity to contest those documentary evidence. I am satisfied the tribunal in the conduct of its inquiry insofar as admitting and considering those documentary evidence and oral evidence adhered to the principles of natural justice. I would dismiss grounds 3 and 4 insofar as they challenge the admissibility of those evidence.

In relation to ground 1, it requires separate and careful consideration because it raises an important procedural issue of constitutional significance in relation to document no. 108 which is the leader’s Statement of Reply.

I have closely read the transcript of proceedings of the tribunal and noted the following significant aspects of the procedure:

1. The leader did not give evidence before the tribunal. Evidence on his behalf was given by 5 other witnesses.
2. The plaintiff’s two Statements of Reply dated 10/12/01 and 18/01/02 contained 42 attachments in the form of financial reports, disbursements forms, cheques, receipts, etc. It also included statutory declarations of Benson Suwang, Jason Som, Butung Koate and Asa Zeming. It also contained a written statement in the form of a Financial Report given to the Ombudsman Commission dated 30 October 2000, upon request by letter of Ombudsman Commission dated 28 February 2000. All these documents were contained in Volume 2 of the Statement of Reasons.
3. Except for Butung Koate who was not called to give evidence by the plaintiff, Benson Suwang, Jason Som and Asa Zeming provided separate written statements to the tribunal and they also gave oral evidence.
4. Even though the leader’s statements (Doc. No. 108 of Mr Cannings’ affidavit) were not in "evidence", the prosecutor in his cross-examination of defence witnesses made reference to receipts appended to the leader’s statement. During submissions, the prosecutor also relied on document no. 108: see p.210-line 10 et seq. of the transcript. Also see p. 214 of transcript.
5. During submissions, Mr Leahy did not rely on the leader’s statement and the documents appended to those statements.
6. During submissions, the tribunal discussed the leader’s statement of reply with prosecution counsel but not with Mr Leahy. e.g. see transcript p.247 - p.248, line 1 – 10.
7. The tribunal in its deliberations on the evidence considered the leader’s statements and documents appended to his statements. These are set out in the Statement in support of application for leave to apply for judicial review. They were repeated in Mr Leahy’s submissions before the tribunal. For completeness purposes, I repeat parts of the judgment:
   
   • (a) Allegation 1 – Although there is no direct reference made to Document No. 108, the following parts are relevant:

"It seems that the leader is relying, in particular, on and I quote, ‘development of village and social services’ to justify the payments for school fees, et cetera, but to our minds that is incorrect. We are satisfied that school fees, et cetera, fall under the heading of ‘Restrictions’ at page 227 of the said volume 1 and in particular, quote; "personal expenses which include household furniture and equipment, travel fares, entertainment and related" (see p.246 of the transcript). Having said all of that we are not satisfied, on the evidence before us, that cash cheques could not be drawn on the said trust account during the said period and we are satisfied that that part of the allegation has not been proved. The standard of proof to be recognized by the tribunal is as established by the Supreme Court in Re James Mopio [1981] PNGLR 416. That is, the tribunal must act judicially, it must observe the principles of natural justice and is not required to apply absolute degree standard of proof but must be reasonably satisfied on the truth of the allegation or denials before it." (see p. 259 of the transcript).

(b) Allegation 2 – No reference to doc. no. 108.
(c) Allegation 3 – "Evidence which give rise to allegations 3, 4 and 5 are that contained in documentary evidence in volume 1 of the statement of reasons, particularly documents 3. 3A, 4, 5 10, 10A, 10B, 10C, 11, 11A, 11B, 97, 98, 99 and 108.

"The leader in reply to the allegations stated that Vitiaz Plant Hire was incorporated as a non profit company wholly owned by the people of his electorate under the leadership of the late Zoling Zeming, then member of Tewae Siassi. The appointment of his own men to the committee to assist in overseeing the operations of the company was merely to comply with the Investment Promotion Authority (IPA) and the Companies Act requirements. He denied having any conflict of interest or any interest for that matter with the company. Some of his witnesses amongst the five reiterated likewise" (see p.263 of the judgment).

(d) Allegation 4 – Supra.
(e) Allegation 5 – Supra.
(f) Allegation 6 – No reference to doc. No. 108.
(g) Allegation 7 – "In our assessment of the evidence we have difficulty ascertaining any law, whether express or implied, that may allow the leader to accept the machinery on behalf of his associates. There is no doubt that the leader was the one who received the machinery from the supplier company, namely Earthquip Limited in Lae and subsequen5ly handed them to Kima Holdings Limited. This ceremony was widely covered in the local media" (see p. 272 of the transcript).
(h) Allegation 8 – "The leader’s response that the members of the board were not there for personal gain but for the interest of the people of Tewae-Siassi to see that important road projects were properly implemented cannot be accepted. Even the timing of the incorporation of he company Kima Holdings Limited proved to be very suspicious. We note that the leader had directed his brother to step down from the company board as the chairman after the Ombudsman Commission had taken issue with the leader. Even so that does not rectify the situation on its own because still remaining on the company board were to associates ‘hand picked’ to be such by the leader himself. Had the leader been genuine, he would have taken appropriate steps in the first place to inform the Ombudsman Commission and other relevant authorities of his interest as well as those of his associates because it is a requirement of law, see the Peter Peipul case."

We cannot find any explanation or reason by the leader that may satisfy the exceptions under section 6(3) of the Organic Law. On that basis we are reasonably satisfied that the leader had not acted in good faith but acted contrary to section 6(1) and (2) of the Organic Law and therefore is guilty of misconduct in office." (see p.273 of the transcript).

(i) Allegation 9 – "The leader does not deny these facts. However, the leader insists that there were no ulterior motives behind Mr Horik’s conduct. The leader says that Mr Horik had acted in good faith and in the best interest of the people of Tewae-Siassi electorate by keeping the refund money safe in his bank account. The leader says three months later the refund money together with interest were deposited into Kima Holdings bank account for its operational costs.

"The leader further submits that since the JDP and BPC have resolved to buy the machinery for K1 million, it only follows that any refund be further injected into the operational costs of Kima Holdings Limited, the company that had custody of the machinery. This the leader says was supported by Mr Iamo Ila’s evidence that 10 per cent of the money is retained for administration costs." (see p.274 – 275 of the transcript).

(j) Allegation 10 –"In our assessment of the evidence it is clear that the leader had used his official capacity then as a State minister and directed Mr Horik to act on his behalf. This is indicated in the leader’s reply to the Ombudsman Commission dated 10 December 2001. It is also clear in the same reply that the leader had in fact hand-picked certain individuals to make up the board of Kima Holdings Limited. It is apparent from the certificate of incorporation of this company that one of the three directors was Mr Asa Zeming, the blood brother of the leader and a major shareholder. Another director, Mr Bufung Koate, was also a member of the JDP and BPC under the chairmanship of the leader. We note also that Mr Koate on numerous occasions had benefited from the leader’s discretionary fund, including the third board member Mr Kailey Ham." (see p. 277 of the transcript).
(k) Allegation 11 – "It is very clear who Mr Horik was and who the board of directors of Kima Holdings Limited were. This can be confirmed by Mr Horik’s own affidavit dated 11 March 2003, the leader’s own reply to the Ombudsman Commission dated 10 December 2001 and the certificate of incorporation of Kima Holdings Limited." (see p.278 of the transcript).
(l) Allegation 12 – "The leader’s action or inaction left a lot to be desired. Firstly, a resolution was passed on a quotation of K1 million produced by the leader yet K21,699 was refunded from the suppliers. The leader did not explain why. Secondly, the leader did not explain why he had to wait for six months to seek the refund in a form of cheque was made payable to his associate Mr Horik. And lastly, the leader did not explain why he did not seek clarification as to what he should do with the refund of these public funds." (see p.279 of the transcript).

Applying the principles I enunciated earlier, it is apparent from the face of the record that although the leader did not give evidence at the tribunal, the leader’s statement was taken into account by the tribunal in determining all the charges. His statements of reply were inadmissible before the tribunal and they were not part of the evidence by virtue of s 21(6). Whilst it is true as Ms Kiele submits, that the plaintiff failed to object to the use of his Statements in Reply, the fact is that his Statements were never sought to be tendered by the prosecution, it was not admitted into evidence and marked as exhibits as it was the case with other documents identified by Mr Cannings in his affidavit. During cross-examination of defence witnesses, the prosecution asked questions on some documents appended to the plaintiff’s Statement of Reply. Also, the prosecutor, during submissions, relied on document no. 108 and invited the tribunal to consider it in determining the charges. The plaintiff’s counsel did not object under s 21(6) on all those occasions but the tribunal in the discharge of its constitutional function and in the exercise of its inherent discretion should have picked out this anomaly in the State case and pointed out s 21(6), invited the plaintiff to be heard on this point and determine its admissibility. Instead the tribunal proceeded to consider the evidence contrary to the mandatory requirements of s 21(6). In my view the tribunal erred in considering the plaintiff’s statement which was inadmissible and was never part of the evidence before the tribunal. The leader was not heard on this piece of evidence. Consequently, a breach of natural justice occurred. This is a fundamental breach of procedure prescribed by the OLDRL and the Constitution.

At the same time, the question of whether the tribunals decision ought to be quashed by way of judicial review of certiorari for this fundamental breach of procedure is discretionary. This discretion is exercised with caution and in appropriate cases, taking into account the sum effect of all relevant considerations. In relation to application for judicial review of decisions of leadership tribunals on grounds of breach of prescribed procedure designed to afford natural justice to parties, the decision should not be readily quashed unless the procedural manner in which the entire proceedings were conducted by the tribunal resulted in some real and substantive injustice caused to the Plaintiff in terms of denying natural justice.

In the present case, in my view, serious allegations of financial abuse and personal gain over public funds resulting in breach of the Leadership Code were brought against the Plaintiff. Abundant and strong other evidence, both documentary and oral evidence, evidence other than the Plaintiff’s statements of reply, was placed before the tribunal by the prosecution. The prosecution also adduced evidence in cross-examination of the witnesses produced by the leader. These evidence were sufficient for the tribunal to make the determinations it did on the 12 charges.

The leader chose not to give evidence himself to rebut the evidence and the charges. Although that is his right to do so, it would be reasonable for any reasonable member of the public attending the tribunal and the tribunal to expect him to respond and rebut the case against him By his own silence on the face of strong accusation and evidence lent support to the prosecution case. The Plaintiff was represented by counsel and given sufficient opportunity to be heard at every important phase of the inquiry - from the commencement of the inquiry when the charges were presented, during presentation of the evidence, and during submissions on both the procedure and evidence and on the law. In my view, it was open for the tribunal to have reached the same conclusion it did, both in law and on the totality of the evidence, on all the charges. I consider that the breach of s. 21(6) did not result in any real and substantial injustice to the Plaintiff. For these reasons, I decline to quash the tribunal’s findings and dismiss the application with costs to the respondent, the State, who is the nominal respondent representing the 1st, 2nd and 3rd respondents.
_____________________________________________________________
Lawyer for the Plaintiff : Young & Williams Lawyers
Lawyer for the Respondents : Solicitor General