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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
(1) OS 639 of 2006 (JR)
BETWEEN:
PAUL ASAKUSA
- Plaintiff -
AND:
ANDREW KUMBAKOR, MINISTER FOR HOUSING & 3
OTHERS
-Defendants-
(2) OS 716 of 2007 (JR)
BETWEEN:
PAUL ASAKUSA & NATIONAL HOUSING CORPORATION
-Plaintiffs –
AND:
NATIONAL HOUSING CORPORATION BOARD & ANOR
- Defendants
(3) OS 127 of 2008 (JR)
BETWEEN:
PAUL ASAKUSA
-Plaintiff-
AND:
ANDREW KUMBAKOR, MINISTER FOR HOUSING & 3
OTHER
- Defendants-
Waigani: Injia, DCJ
2008: 26 - 27 March
: 10 April
PRACTICE AND PROCEDURE – Judicial review – Application for leave- Arguable case – To be determined with reference to grounds of review pleaded in Statement filed under O 16 r 3 (2) (a) of National Court Rules and material filed in support of application for leave- Appropriate test – Whether ground of review contained in Statement is properly and sufficiently pleaded to raise arguable issues of law – Meaning of " proper and sufficient pleading"
Cases cited:
Papua New Guinea Cases
Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22
Kekedo v Burns Philp Ltd [1988-89] PNGLR 122
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
NTN v Board of Post and Telecommunications Corporation [1987] PNGLR 70
Lohia Raka & Others v Leo Toichem & Others [2000] PNGLR 328
Tiga Nalu v Commissioner of Police (1999) N1927
Thomas Kamo v Commissioner of Police (2001) N2084
Lawrence Sasau v PNG Harbours Board & Another (2006) N3253
Willie Edo v Hon. Sinai Brown, Minister for Public Service & Others (2006) N3071.
Overseas Cases
Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
Counsel:
V Narokobi, for the plaintiff
N Chillion, for the State
10 April, 2008
1. INJIA, DCJ: These three proceedings are related. They relate to the purported suspension of the plaintiff as the Chief Executive Officer (CEO) or Managing Director (MD) of the National Housing Corporation (NHC) and appointment of other persons to act on the position. In each matter, the plaintiff applies for leave for judicial review under O 16 r 3 of the National Court Rules, of certain decisions of the Board of NHC and /or the Minister for Housing (the Minister) and/or the National Executive Council (NEC). The applications were heard together.
2. In OS 639 of 2006 (JR), which was commenced on 12 September 2006, the plaintiff applied for leave to review the decision of the NEC made on 7th September to suspend him from office and appoint Mr Philip Kikala to act in the position. Prior to leave being granted, the plaintiff applied for and was granted interim orders which restrained the defendants from effecting the suspension. Subsequently, I decided to extend those interim orders. In my ruling, I made strong observations on the seriousness of the issues to be tried in the proposed grounds of review and noted that the Minister and the NEC had not followed the procedure prescribed by ss 8 & 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (RSA Act) in that the decision to suspend and appoint an acting MD were not based on any recommendation of the Board of NHC. As a result of my ruling, on 26 October 2006, the NEC revoked its decision and reinstated the plaintiff. Following this decision, the plaintiff did not prosecute the leave application until last week.
3. On 22 November 2007, the Board met and made two decisions. First it dealt with a disciplinary matter involving two NHC officers, one of whom is Mr David Dambali. The Board decided to reject the recommendation by the NHC’s disciplinary committee of dismissal or reinstatement and demotion of the two officers and instead directed the plaintiff to reinstate them. The second decision relates to allegations of corrupt or improper conduct and mismanagement made against the plaintiff. The Board decided to investigate the allegations and to facilitate the investigations, it recommended the plaintiff’s suspension to the Minister pending. The Board then submitted to the Public Service Commission (PSC) a list of candidates for acting appointment for consultation purposes.
4. On 11 December 2007, the plaintiff commenced OS 716 of 2007 (JR), seeking leave to review these two decisions.
5. The second decision made by the Board referred to above resulted in the suspension of the plaintiff. On 10 March 2008, the NEC decided to suspend the plaintiff and appointed Mr David Dambali to act on the position. On 11 March 2008, by notice published in the National Gazette, the Head of State effected the said decisions.
6. In OS 127 of 2008 (JR), commenced on 17 March 2008, the plaintiff seeks leave to review the decisions and actions of the Board, the Minister and NEC.
OS 639 OF 2006 (JR)
7. On 27 March 2008, in the course of the hearing, the parties accepted the Court’s suggestion that the proceedings in OS 639 of 2008 (JR) should be resolved by consent of the parties because the decision sought to be reviewed had been revoked and there was no purpose in maintaining the proceedings. The orders made by consent are as follows:
8. That leaves the applications in the two remaining proceedings to be determined.
Principles
9. An application for leave involves an exercise of judicial discretion. An applicant must show that he or she has sufficient interest in the matter (O 16 r 3 (5) ), there is no undue delay in bringing the application (O 16 r 4 in respect of an application for certiorari), he or she has exhausted alternative statutory or administrative remedies ( O 16 r 3 (6)) and that there is an arguable case: Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Kekedo v Burns Philp Ltd [1988-89] PNGLR 122.
Sufficient interest
10. The plaintiff’s sufficient interest in OS 127 of 2008 is not contested. The plaintiff’s sufficient interest in OS 716 of 2007 is contested on the basis that the Board did not authorize the plaintiff to bring the proceedings on behalf of NHC either in his own name or in NHC’s name. Counsel for the State Mr Chillion submits the NHC is a statutory corporation which is represented by the Board. A person cannot bring proceedings in a representative capacity on behalf of the NHC unless he is authorized by the Board.
11. I reject this submission. The plaintiff is the incumbent CEO or MD of NHC and as the person charged with the responsibility of managing the affairs of the NHC, he is entitled to bring proceedings against the Board if he feels aggrieved by the Board’s decision on any matter affecting the management functions of NHC, which includes disciplinary matters involving staff members of the NHC including himself. I am satisfied that he has sufficient interest to bring the proceedings under his own name in his capacity as MD of NHC as he has done in this case. However in relation to the NHC as a second plaintiff, I accept Mr Chillion’s argument. The first plaintiff requires a resolution of the Board of NHC to authorize him to bring these proceedings in the name of NHC. For this reason, the second plaintiff shall be removed as a party to these proceedings.
Undue delay
12. The plaintiff in both matters seeks an order in the nature of certiorari. There is no dispute that both proceedings were filed within the four month period stipulated by O 16 r 4 (2).
Exhausting of other alternative statutory and administrative remedies
13. There is no dispute that there are no other statutory or administrative avenues available to the plaintiff to review the decision of either the Board, the Minister or the NEC in both matters.
Arguable case
14. The State contests this requirement in both matters.
15. The principles which apply to determining whether an applicant has an arguable case to warrant a trial are settled. In determining whether there is an arguable case, the Court is not concerned with determining the merits of the case. In Ila Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22, the Supreme Court approved the principles set out by Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644 which were adopted and applied by Wilson J in NTN v Board of the Post and Telecommunications Corp [1987] PNGLR 70 at 74. Lord Diplock said:
" If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application".
See also Manjin v Post and Telecommunications Corp [1990] PNGLR 288 at 289, Lohia Raka & Others v Leo Toichem & Others [2000] PNGLR 328; Willie Edo v Hon. Sinai Brown, Minister for Public Service & 3 Others (2006) N3071.
16. The arguable nature of a case should be, in my view, determined with due consideration given to, amongst other relevant matters, two important matters - first, the grounds of review pleaded in the Statement filed under O 16 r 3 (2)(a) and second, the material placed before the Court by the applicant together with any material that may be presented by the State, who has a statutory right to be heard on an application for leave: s 8 of Claims By and Against the State Act 1996.
17. In relation to the first matter, judicial review is a restrictive process: Thomas Kamo v Commissioner of Police (2001) N 2084. It is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances. As I said in Tiga Nalu v Commissioner of Police (1999) N1972:
" At the outset let me say that the grounds of review purporting to challenge the finding of guilt as they are pleaded are vaguely worded and not sufficiently particularized, to demonstrate the error on the face of the record. Judicial review is a discretionary remedy which is exercised in favour of an applicant on proper cause being shown. The exercise of the judicial discretion is governed by established principles, some of the pertinent ones being reflected in Order 16. It is not an open forum for disgruntled plaintiffs and /or their lawyers to stage an all out attack on the day of the review hearing on every conceivable error extracted from a post mortem examination of the disciplinary records provided by the disciplinary authority".
18. The Statement is equivalent to a Statement of Claim in a Writ of Summons: Lawrence Sasau v PNG Harbours Board (2006) N3253. It must set out, amongst other matters, an accurate description of the decision under review, a succinct statement of the relevant facts alleged which give rise to the grounds for review, the relief sought and the grounds upon which the relief is sought. Consistent with the need to prevent abuse of court process by busybodies with misguided or trivial complaints over administrative error, the Statement must plead in a separate paragraph, in clear and concise terms, the grounds relied upon. The grounds must contain reference to some established grounds recognized by law as proper grounds upon which judicial review relief is available and the statutory provision or common law duty alleged to have been breached. The grounds on which judicial review is available are also settled. Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesbury principles of unreasonableness) or abuses its powers: Kekedo v Burns Philp [1988-89] PNGLR 122 at 124, per Kapi DCJ (as he then was). Also see Independent State of Papua New Guinea v Kapal [1987] PNGLR 417. These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court.
19. In my view, the appropriate test is whether the grounds pleaded in the Statement contain a clear and concise description of the specific statutory provision or common law duty alleged to have been breached with reference to established grounds of review which the law recognizes as proper grounds for review. I would refer to this test as the proper and sufficient pleading test. The onus is on the applicant to satisfy this test. The material provided to the court by the applicant to support the application for leave is separate from the pleading of the grounds of review. The Court cannot be asked to shift through the material to ascertain what the grounds or particulars of those grounds are. Unless leave is sought and granted to amend the Statement to improve the pleading of those grounds (O 16 r 3 (4)) at the hearing of the application for leave, leave to apply for judicial review should be refused on such grounds which offend this test. Any ground of review which fails to meet this test is an incompetent ground and it is not arguable. Leave for review on that particular ground(s) should be refused on this basis alone.
20. In relation to the second matter, although the parties may be allowed to address on the material placed before the Court in some meaningful and sufficient manner, the Court should avoid engaging in a detailed and full consideration of the material and the merits of the issues raised. The issue raised by a particular ground is relevant to the decision the subject of the review and the established or recognized grounds on which judicial review remedy is available at law. The Court should peruse the material and decide whether the grounds as pleaded and material relied upon raise arguable issues of law. If they do not, leave should be refused on that particular ground(s) on this basis alone.
21. In every application for leave, a strict application of these principles is necessary to weed out unnecessary applications which have no legal basis in law. It is necessary in every case to first strictly scrutinize each and every ground of review set out in the Statement to ensure that the grounds satisfy the sufficient pleading test and then as the next step, to consider whether the ground(s) raises an arguable case. The discretion that the Court is exercising at this stage of the judicial review process is necessary to protect the Court process from being abused. The strict scrutiny applied to the grounds in the Statement is analogous to the scrutiny applied to pleading of a reasonable cause of action in a Statement of Claim in Writ of Summons where the Court determines whether a pleading discloses a cause of action or a pleading is frivolous and vexatious and amounts to abuse of process. Because judicial review is a restrictive process, the standard of scrutiny is much higher than that applied to an ordinary Statement of Claim. The standard of scrutiny applied to the material placed before the Court to support the ground is also higher.
22. Applying these principles to the present case, in the course of argument by both counsel in both matters, I posed questions pertinent to these two relevant considerations, which resulted in Mr Narokobi’s concession on several grounds of review set out in each Statement in respect of each application. In respect of other grounds, he sought to explain the grounds with reference to the materials.
OS 716 of 2007 (JR)
23. I will deal with the proceedings in OS 716 of 2007 which was heard first. The grounds pleaded in par 5 of the Statement as follows:
(i) The decision of the defendant on or about 22 November 2007, was not a valid decision at law, as the board that convened, did not convene pursuant to s 7 (1) (a) (i) and s 15 of the National Housing Corporation Act 1990 by notifying board members, including the plaintiff, that the said meeting would take place.
(ii) The decision of the defendants on or about 22 November 2007, violated the plaintiff’s right to natural justice, under s 59 of the Constitution, as they were never informed of the said board meeting of 22 November 200.
(iii) Even if the decision of the defendants were lawful, they were harsh and oppressive pursuant to s 41 of the Constitution as the circumstances, did not warrant the said decision of the defendants of 22 November 2007.
(iv) That the decision of the defendants of 22nd November 2007, is illegal pursuant to s 17 (2) of the National Housing Corporation Act, that is, it encroaches on the administrative functions of the First Plaintiff.
(v) The decision to refer the First Plaintiff to the Public Service Commission is an illegal decision as the First Defendant has no power to act on his own and without proper notice to the First Plaintiff pursuant to s 59 of the Constitution of the referral.
(vi) The referral to the Public Service Commission is an indirect pressure by the First Defendant to be involved in the administrative functions of the First Defendant stipulated under s 17 (2) of the National Housing Corporation Act.
24. Grounds (i) & (ii) are general and they apply to the two decision referred to grounds (iii) – (vi). Grounds (ii) – (iv) appear to relate to the decision in respect of the disciplinary matter involving the two employees of NHC. Grounds (v) – (vi) appear to relate to the decision to submit several names of several candidates for acting appointment to PSC.
25. I accept Mr Narokobi’s submission that grounds (i) & (ii), although a little vague as to specific reference to specific provisions in s 15 of the National Housing Corporation Act, 1990 (NHC Act) when read together, are sufficiently pleaded.
26. Mr Narokobi concedes that ground (iii) is not a proper ground for judicial review based on my decision in Lawrence Sasau v PNG Harbours Board, supra. The appropriate pleading is one of unreasonableness of the decision under the Wednesbury principle.
27. I accept Mr Chillion’s submission that ground (iv) is too general and vague. Section 17 (2) of the NHC Act provides:
" The Managing Director shall be the Chief Executive of the Corporation and shall manage and direct its affairs, and in relation to the management of the Corporation and the direction of its affairs, shall act in accordance with any policies determined by the Board."
28. This is a general provision which vests the administrative management of NHC on the MD. There is no provision in the Act which provides for the powers and functions of the MD in relation to staff discipline matters, which appears to be alleged in this ground. I was told that there was in existence a NHC Determination made under the Act which sets out those matters but none of those provisions are referred to in this ground. This ground fails the test.
29. Ground (v) has no basis in law. There is nothing in the NHC Act and s 9 of the RSA Act which gives him a right to be heard on the Board’s list of candidates for acting appointment of MD before it submits the list to PSC for its assessment. Section 59 of the Constitution which adopts the common law principles of natural justice has no application to such facts situation.
30. In relation to ground (i), Mr Narokobi’s arguments are centred around the wording of s 7 (a) (i) and s 15 of the NHC Act which provide:
" 7. Constitution of the Corporation.
(1) The Corporation shall consist of nine Board members comprising:-
- (a) the following ex officio members: -
(i) the Managing Director;"...
"15. Meetings of the Board.
(1) The Board shall meet at such times and places as the chairman determines.
(2) The Minister may at any time convene a meeting of the Board.
(3) At a meeting of the Board –
- (a) three members are a quorum; and
- (b) the Chairman, or in his absence a member elected by the members present from their own number, shall preside; and
- (c) all matters shall be decided by a majority of votes of the members present and voting; and
- (d) the member presiding has a deliberate and, in the event of an equality of votes, also a casting vote.
(4) Subject to this Act, the procedures at a meeting of the Board are as determined by the Board."
31. Mr Narokobi submits a meeting of the Board must be attended by those members who wish to attend. The MD is an important member of the Board. He is entitled to attend Board meetings. Although s 15 does not expressly provide for Board members to be notified of a proposed meeting, upon reading s 7 (1) (a) (i) and s 15 together, by implication, it is intended that members be notified of a proposed meeting to enable them to attend the meeting. It is also fundamental requirement of any statutory meeting for members to be notified of the time, place and agenda of the meeting. In the present case, the meeting was convened by the Chairman. The defendants concede the plaintiff was not notified of the Board meeting of 22 November 2007 for reasons given to do with his past behaviour in attending board meetings and so on. For this reason, the issue is clearly arguable.
32. Mr Chillion submits there is no provision in s 15 which requires the Chairman to notify members of the proposed meeting. The plaintiff was not notified of the proposed board meeting because of his previous lack of co-operation in attending board meetings. The meeting was called by the Chairman and attended by members. The meeting had the prescribed quorum of at least 3 members and passed two valid resolutions. This ground is clearly not arguable.
33. In relation to ground (ii), Mr Narokobi submits the principles of natural justice adopted under s 59 of the Constitution also required the Chairman of the Board to notify members of the proposed meeting. As this was not done, this ground is clearly arguable. Mr Chillion submits s 59 is irrelevant to a meeting convened under s 15 of the NHC Act.
34. I accept Mr Chillion’s submission. In matters of practice and procedure of meetings of public administrative bodies or authorities, it is reasonable to expect the legislature to give greater latitude to the administrative body to prescribe its own rules of practice and procedure. But when a statute expressly prescribes the procedure to be followed in convening and conducting a meeting of a statutory board or authority, and especially in mandatory terms, those procedures must be strictly followed. Failure to do so amounts to either an excess of jurisdiction or breach of law and would result in voiding the meeting. Where there is no such express provision in a statute, the Court cannot, in the exercise of its statutory interpretative function, fill in the gap, to create a new procedural law. In the present case, there is no express provision which imposes a duty or obligation on the Chairman of the Board to notify the MD of a proposed meeting. Such matters as giving notice of meeting is left to the Board to determine. As a matter of law, it is beyond question that it is not open for a Court to fill the gap. It is a matter for the Parliament. In its absence, it must be left to the Board whose power may be exercised by the Chairman as part of his or her duty to convene a meeting under s 15 (1). In the present case the Chairman considered it was not proper for the Plaintiff to attend this particular meeting for reasons given. It is not for the Court to scrutinize his judgment and decision on a procedural matter which he has jurisdiction, under the judicial review process. For these reasons, I am of the view that ground (i) is not arguable.
35. I am also of the view that ground (ii) is also not arguable. There is no provision in the NHC Act which imposes a duty on the board or its chairman to observe the principles of natural justice when it comes to convening a meeting of the board in so far as it relates to notifying members including the MD.
36. Mr Narokobi referred to other material and made submissions on the question of whether there was a board meeting at all but this submission is not founded on any ground of review. Those material and submissions are irrelevant to the issue before me.
37. For these reasons, I find that all the grounds of review are not arguable. I dismiss the application for leave with costs to the State.
OS 127 of 2008 (JR)
38. In OS 127 of 2008, the grounds pleaded in par 4 of the Statement are as follows:-
39. Mr Narokobi concedes that grounds (b), (c) & (d) are misconceived in that the NEC’s decision is one of suspension and not dismissal or termination. Section 18 of the Act applies to dismissal of MD by the Head of State. These grounds are not arguable.
40. Arguments of counsel were centred around grounds (a) & (e). The procedure for appointment, suspension and revocation of appointment and appointment of an Acting MD of the NHC is prescribed by RSA Act by virtue of s 17 (1) (a) of the NHC Act. These grounds are based on the procedure for suspension and appointment of an acting CEO prescribed by ss 7, 8 & 9 of RSA Act. It is necessary to set out in full ss 7, 8 & 9 of RSA Act.
"PART III – PRCEDURE FOR REVOCATION OF APPOINTMENT, ETC, OF CHIEF EXECUTIVE OFFICERS.
7. INVESTIGATIONS OF GROUNDS FOR DISMISSAL.
(1) Where, in relation to a Regulatory Statutory Authority, the Board believes that grounds exist for the dismissal of the chief executive officer, it shall cause an investigation into the conduct, activities or performance of the chief executive officer.
(2) The grounds for dismissal referred to in Subsection (1) shall be consistent with the grounds 0f dismissal as specified in the chief executive officer’s contract of employment which include breach of contract, misconduct, poor performance, incompetence and ill health, as prescribed in the Regulations.
(3) Where the board has made an investigation under Subsection (1), it shall submit a report on its investigations together with the recommendations to the Public Services Commission.
(4) On the receipt of a report under Subsection (3), the Public Services Commission –
(a) shall consider the evidence provided and the recommendations of the Board; and
(b) may make, or cause to be made, and consider further investigations (if any) as it considers necessary; and
(c) shall, on the basis of the report and the results of further investigations (if any), inform the Board by way of a recommendation whether or not the appointment of the chief executive officer should be revoked.
(5) The Board shall convey its recommendation to the Minister and, in the event that the National Executive Council approves the recommendation of the Minister to revoke the appointment of the chief executive officer, the National Executive Council shall advise the Head of State to revoke the appointment of the chief executive officer.
(1) Where a Board is to carry out an investigation into the conduct, activities or performance of a chief executive officer under section 7 (1) and is in receipt of material information from credible sources that the conduct of the chief executive officer is such that serious charges of misconduct may be brought against the chief executive officer, it shall determine whether grounds exist for the suspension of the chief executive officer during the period of the investigation.
(2) The grounds for the suspension of the chief executive officer shall be consistent with the grounds for dismissal or suspension as prescribed and contained in the chief executive officer’s contract of employment.
(3) Where the Board determines that grounds exist for the suspension of the chief executive officer, it shall advise the relevant Minister to recommend to the National Executive Council the suspension of the chief executive officer on full pay for the duration of the investigation.
(4) In the event that the National Executive Council approves the recommendation of the Minister for the suspension of the chief executive officer, it shall advise the Head of State to suspend the chief executive officer.
9. ACTING APPOINTMENT OF THE CHIEF EXECUTIVE OFFICERS
(1) Where, in relation to a Regulatory Statuary Authority –
- (a) the chief executive is unable to undertake his duties for any reason or
- (b) the Board considers it is necessary to make an acting appointment pending a new substantive appointment, the Board shall recommend to the Minister a suitable person to act for a period not exceeding three months, from a pre-selected list of suitable persons endorsed by the Public Services Commission based upon an assessment on the prescribed minimum person specification.
(2) On receipt of a recommendation under Subsection (1) the minister shall recommend to the National Executive Council to make an acting appointment and the National Executive Council should make the acting appointment."
41. Mr Chillion submits ground (a) and (b) are misconceived because they are too general and they do not specify which aspect of the prescribed procedure was not followed by each defendant. Mr Narokobi submits both grounds are adequately pleaded in that the procedure is outlined first and the alleged breach is also specified. Any lack of particular breaches is supplied by the material in the form of affidavits filed by the plaintiff.
42. I accept Mr Chillion’s submission. First, ground (a) is badly drafted. There is no s 208 B (3) & (5) in the RSA Act. Section 7of RSA Act which deals with the actual investigation and removal of the MD, is not the suspension provision. Section 8 is the suspension provision. Section 7 & 8 are lumped together and it is confusing. There is reference to s 208 B(3) & (5) of the Constitution in other parts of the Statement. This constitutional provision is lumped together with ss 7 & 8 of the RSA Act and it is even more confusing. Secondly, the procedure for suspension is summarized in the first part of this ground and is followed with a broad assertion that that procedure was not followed. The suspension procedure has a number of steps or phases involving a number of actors. I took time in court during argument to go through those steps. A general assertion that the prescribed procedures were not followed is not adequate. Specific breach of prescribed procedure by named actors is necessary. The material placed before the Court in the form of affidavits and submissions made by counsel cannot cure the defect in the pleading of the grounds of review. It is also not the court’s task to shift through the material and submissions to ascertain what those breaches alleged are. In my view, this ground is badly pleaded and is not arguable for the same reason.
43. The same reasoning applies to ground (e). It is also not arguable.
44. In summary, I have found that all the grounds of review have failed the first test of sufficient or proper pleading of grounds of review. The application for leave should be dismissed for this reason alone. I now proceed to consider the submissions on the material before me.
45. Mr Narokobi’s main submission on suspension is that the Board did not give the plaintiff an opportunity to respond to the allegations made against him before the Board decided to recommend his suspension. As he was not notified of the board meeting he was denied the opportunity to present his case before the Board. Even if he did not attend the meeting, he was entitled to be furnished with copies of the allegations so that he could give his response before the Board decided on the suspension. He submits although s 7 does not make express provision for this opportunity to be afforded, that duty is implied by s 7. It is also a requirement of natural justice under s 59 of the Constitution. He also adopts submissions he made on this point in OS 716 of 2007.
46. Mr Narokobi submits the Board did not have material information from credible sources to base its decision. The letter from the Police Commissioner to the Board Chairman produced by the respondents merely asserts there were serious allegations of corruption made against the plaintiff which were being investigated. It lacks particulars of those corrupt activities and it should not have been relied upon by the Board in reaching its decision.
47. For these reason Mr Narokobi submits, ground (a) is arguable.
48. Mr Chillion submits the suspension of the plaintiff under s 7 was to facilitate an investigation to be carried out under s 8. In my ruling in OS 639 of 2006, I noted serious allegations of corruption and mismanagement had been levelled against the plaintiff which went before the Public Accounts Committee (PAC) and eventually to the NEC. They were pending investigation. The Police Commissioner advised the Chairman of the Board that those investigations being conducted with a view to laying criminal charges. The Board is set to carry out its own investigations with a view to removing the plaintiff. The Board had considered those materials and made the recommendation to the Minister to suspend the plaintiff, the Minister made the recommendation to the NEC which then advised the Head of State. The Head of State has effected the suspension and the gazetted notice of suspension has been published. Although there is no express provision in s 7 for the plaintiff to be given an opportunity to reply to any charges laid against him, principles of natural justice will require the Board to give him that opportunity. In the course of the investigations he will be given an opportunity to reply to any charges laid against him. There is no express requirement in s 8 that he should be afforded an opportunity to be heard by the Board before a decision on suspension is made. Such requirement cannot be implied into s 7. For these reason, ground (a) is not arguable.
49. I accept Mr Chillion’s submissions. The principles of natural justice under s 59 of the Constitution is implied into statutes in a disciplinary process usually when formal misconduct charges are laid but not in the preliminary investigation process except where expressly provided otherwise by statute. I am not referred to any common law principle of natural justice which says a public official who is being investigated for a disciplinary offence should be informed of the investigations and his response received before he is suspended and charged. The suspension under s 8 is simply to facilitate the investigations under s 7. If disciplinary charges are laid against him, I am sure he will be given an opportunity to reply to those charges. It is clear to me that the prescribed procedure was followed in effecting his suspension. This ground is not arguable.
50. In relation to ground (e) Mr Narokobi submits there were irregularities in the process of appointment of Mr Dambali. He was recommended for dismissal or reinstatement and demotion by the disciplinary committee. His name was the only one sent to PSC by the Board. The PSC mentioned several names whose source was not mentioned. Other questions arise as to the interactions which followed between PSC and the board. There are also questions surrounding the simultaneous suspension of the plaintiff and appointment of Mr Dambali contrary to s 9. This ground is arguable.
51. Mr Chillion submits those irregularities are not sufficient to disturb the NEC’s decision. The prescribed procedures were complied with. The Board submitted names to the PSC which commented on the list. Mr Dambali was recommended and the NEC appointed him. It is open under s 9 for those two decisions to be made simultaneously, in the same meeting of the Board and the NEC. This ground is not arguable.
52. I have much difficulty in understanding the plaintiff’s case as put by the plaintiff and Mr Narokobi in terms of the steps required to taken in making an acting appointment. They both appear to be unsure of what that process is and the steps involved in that process under s 9. And this stems from the poor pleading. Mr Narokobi attempted to assist me understand this procedure and how the allegations of breaches fits into that scheme but I am still left wondering which steps were not followed. For this reason, this ground is not arguable.
53. For the foregoing reasons, I dismiss the applications in OS 127 of 2008 with costs to the State.
54. In conclusion, I make several orders affecting OS 716 of 2007, OS 127 of 2008 as well as OS 639 of 2006 in respect of interim orders issued in those proceedings as follows:
Narokobi Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the State
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