N4411
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 313 OF 2011

BETWEEN

PETER CHARLES YAMA
Plaintiff

AND

CAMILUS SAMBUA
Defendant

Waigani: Murray, J
2011: 16th June &
26th July

RULING ON MOTION

INJUNCTION- Application for Interim Injunction to restrain the Defendant from performing his functions as the Acting Public Prosecutor – Three main issues - Does the Plaintiff have an arguable case - Does the Balance of Convenience favour the grant - Is an injunction necessary to do justice in the circumstances of the case.

Facts:

The plaintiff sought certain declarations and both a permanent and interim injunction restraining the defendant, who is the Acting Public Prosecutor from personally dealing with or handling prosecution files created from complaints laid with the Police by the Plaintiff, Mr. Yama.

The Plaintiff also applied for an interim injunction restraining the defendant from exercising his powers pursuant to section 525 of the Criminal Code Act relating to prosecution matters that arose out of the complaints laid by the Plaintiff. 

Held:

1.	The plaintiff does not have a serious question to be tried.

2.	The issue of adequacy of damages is not an appropriate consideration in this case.

3.	The balance of convenience does not favour the grant of the interim injunction.

4.	It is not in the interest of justice nor in the interest of the public that the defendant, who is the Acting Public Prosecutor be separated from carrying out his lawful duty under section 525 of the Criminal Code Act, or be restrained from performing functions which he is empowered to apply or exercise. 

5.	The plaintiff's notice of motion seeking the interim injunction is refused.

Cases cited:
Papua New Guinea Cases

Employees Federation of PNG -v- PNG Waterside Workers Union (A 1982 December) N393
AGK Pacific (NG) -v- William Brod Anderson Karsan Constructions (PNG) Ltd and Downer Constructions (PNG) Ltd (2000) N2062.
Ewasse Landowners Association Inc. -v- Hargy Oil Palm Ltd (2005).
Robinson -v- National Airlines Commission [1983] PNGLR 478
Brother's Rugby Football Union Club -v- Pomf Union Inc, (N2537)
Rimbink Pato -v- Antony Manjin & Ors [1999] PNGLR6

Overseas Cases:

American Cyanide Co. -v- Ethicon Ltd (1975) 1 A11 ER, 594,

Counsel:

Mr. Ame, for the Plaintiff 
Mr. Mapiso, for the Defendant

26th July, 2011

1. MURRAY, J: In the Originating Summons filed by the plaintiff herein, the plaintiff seeks certain declarations, a permanent injunction restraining the defendant from personally dealing with the charges relating to complaints arising from a complaint by the plaintiff and pending the final determination of this matter, an interim injunction restraining the defendant from personally dealing with CR No. 250 of 2010, CR No. 1445 of 2010 and CR. No. 1446 of 2010. 

2. The application for the interim injunction was made pursuant to a notice of motion filed on the 6th June 2011. The interim orders sought were as follows: 

1.	That pending the final determination of the substantive matter, the defendant, Camilus J Sambua be retrained from personally dealing with taking any further action against matters arising from the plaintiff, Peter Yama's complainant to the police.

2.	That pending the final determination of the substantive matter the defendant, Camilus J. Sambua be restrained from withdrawing by an application pursuant to section 524 of the Criminal Code any matter relating to complaint laid by the plaintiff.

3.	In support of the application, the plaintiff relies on his affidavit sworn 3rd June 2011 and filed on 6th June 2011.

BACK GROUND

4.	From a perusal of Mr Yama's affidavit, a brief background of the matter is set out below.

5.	The plaintiff, Peter Yama had in 2007, lodged at Gordons police station a complaint against certain officials of Bank of South Pacific and their agents or servants. Following this complaint, a John Maddision and Robin Flemining were arrested and committed to stand trial on charges as follows:

1. On 7th May 2010, John Maddison was committed for trial on a charge of dishonestly applying to his own use the sum of K1.3 plus million, belonging to Nesinel No. 77 Ltd, a company owned by the plaintiff.

2. On 8th November 2010, both John Maddision and Robin Flemming were committed for trial on a charge of conspiracy to defeat the course of justice by presenting false documents to wit a fixed floating charge dated 6th May 1999 was relied on in a National Court Garnishee proceeding resulting in a diversion of a payment of a sum of K7, 303,115.85 to Deloitte Touche Tomatshu, which was due to Yama Security Services by MVIL.

6. On 14th April 2011, the matter CR 250 of 2010 was mentioned at 2pm for the State to file a pre trial review statement and also for the Public Prosecutor to inform the Court as to his attitude regarding the continuation of the charge against Mr John Maddision, the accused in the said proceeding.

7. The Acting Public Prosecutor, (the defendant) who was present in Court informed the Court that, after receiving and considering two different advices on the matter, the State's position changed, in that, State would not proceed with the matter and that it be disposed of once the necessary documents were filed. The necessary document mentioned by the defendant was clarified by Ms Zurenouc to be a declaration.

8. When the matter retuned to Court on the 18th April 2011 Ms Zurenouc appeared in Court and presented a Declaration made pursuant to section 525 (1)(b) of the Criminal Code. This essentially dropped all charges against Mr Maddision.

9. Being frustrated by this, the plaintiff herein took the following actions.

1.	Lodged a complaint against the defendant (Acting Public Prosecutor) on 20th April 2011 with Judicial Legal Services Commission (JLSC); (Annexure "D" to plaintiff's affidavit)

2.	Lodged another complaint against the defendant (Acting Public Prosecutor) with the police on 26th May 2011; (Annexure "C" to plaintiff's affidavit) and

3.	Filed the current proceeding. 

EVIDENCE 

10. The plaintiff relies on his own affidavit as referred to in paragraph three above. No affidavits were filed by the defendant, given the manner in which the application was sought.

11. In essence, the plaintiff deposes to matters as I have set out in the background. Without repeating what I have set out in the background, the crux of the plaintiff's complaint is set out in his two letters of complaint he lodged with the JLSC and the Police, respectively.

12. The letter to JLSC is dated 20th April 2011 (annexure "D") the letter is titled "Complaint against Acting Public Prosecutor, Mr Camillus Sambua".

13. In this letter, the plaintiff states inter alia the following:

 "As the JLSC may be aware the Public Prosecutor or a State Prosecutor shall consider the evidence in the matter and may decline to lay a charge. That power is given to the Public Prosecutor under section 525 (1) (b)." and;

Whilst that power is given to the Public Prosecutor, the same has not consulted the Arresting Officer, the complainant which is me and the Directors of Yama Group of Companies" and; (underlying mine)

The evidence consists of both oral and documentary evidence and declining to lay charges two weeks after his appointment makes one wonder about the motive behind the Acting Public Prosecutors action".

14. The letter to the Police is dated 26th May 2011 (Annexure "C") the letter is titled: "Complaint against Acting Public Prosecutor, Mr Camilus Jacob Sambua - Perverting cause of Justice"

15. In this letter, the plaintiff starts by saying; 

 "I hereby lodge a formal complaint against the Acting Public Prosecutor Mr Camilus Sambua for criminal conduct relating to the withdrawal of charges against Mr John Maddission, an employee of Bank of South Pacific Ltd." 

 then on page 4 of his letter, the plaintiff states:

 "As a complainant, I am totally amazed and frustrated by Mr Sambua's conduct and I as a former policeman and as a lay man in law I am of the view that Mr Sambua's conduct is criminal in nature.

 His conduct amounts to perverting cause of justice in this instance. Mr Sambua may have powers under section 525 to withdraw charges but in this case he had deliberately or otherwise misused and misapplied such powers.(underlying mine)

 The mandatory requirement of section 525 subsection (1) of the Criminal Code Act is that the Public Prosecutor or the State Prosecutor shall consider evidence before taking further actions.

 Mr Sambua did not satisfy the mandatory requirements to consider the evidence that had been processed and upheld by the Committal Court."

SUBMISSIONS

Plaintiff's submission
 
16. I must state at the outset that, I was not provided with any written submission to assist me follow oral submission by Mr Ame of Counsel representing the plaintiff whose submission I must say, was difficult to follow.

17. Nonetheless, I had taken notes which I relied on, together with my perusal of the affidavit in support.

18. The plaintiff submits, firstly, that his case is a serious one that must be tried and the crux of his argument that he has a serious case and not a speculative one is twofold. Firstly, he submits that, whilst it is within the defendant's powers (as the Acting Public Prosecutor) under section 525 (1)(b) of the Criminal Code Act to decline to lay charges against John Maddision in CR 250 of 2010 and both John Maddision and Robin Fleming in CR. 1445 of 2010 and CR 1446 of 2010 respectively, he can not make that decision on his own, he must consult the plaintiff, as the Complainant and the Arresting Officer (emphasis added) before deciding whether to prosecute or not to proceed to prosecute as he had done in CR 250 of 2010 and will do in CR 1445 of 2010 and CR 1446 of 2010 if he is not injuncted and secondly, the plaintiff submits that, the minute, he lodged a complaint with the police and the JLSC regarding the defendant's conduct in CR 250 of 2010, the defendant has a conflict of interest and so he should divorce himself from dealing with files arising or created from complaints by the plaintiff.

19. Secondly, as to balance of convenience it was submitted that the defendant is sued in his personal capacity and not as the Acting Public Prosecutor. Therefore he should not personally deal with the matter arising from the plaintiff's complaints, hence injunction should be granted. 

20. Thirdly, as to damages it was submitted that damages would not be an adequate remedy, as the plaintiff's claim arise from criminal proceedings. 

Defendant's submission

21. Like Mr. Ame, Mr Mapiso of Counsel for the defendant did not assist me any written submission and so I was left to rely on my notes only.

22. Mr Mapiso for the defendant submits that the plaintiff's case is a speculative one and not one that is arguable and raised the following arguments.

23. Firstly, the plaintiff has no standing to bring this action as the subject of the matter relates to the defendant's exercise of his official functions, as the Acting Public Prosecutor in a criminal matter which is between the State and an Accused called Mr Maddision of which the plaintiff is not a party at all.

24. Secondly, the defendant, who is the Acting Public Prosecutor has been named in his personal capacity, which is wrong because, the decision he made in the criminal proceedings; CR. 250 of 2010 and intends to do in CR 1445 and CR 1446 of 2010 are done by him in his official capacity, as the Acting Public Prosecutor and not in his personal capacity as the plaintiff argues and therefore cannot be sued in his personal capacity.

25. Thirdly and more importantly, Mr Mapiso submitted that, the defendant who is the Acting Public Prosecutor is independent under the Constitution and is therefore not subject to the directions or control of any one, not even the Courts. To support his contention, Mr Mapiso replies on the case of Pato -v- Manjin [1999] PNGLR 6.

26. If there is an error in the discharge of the Public Prosecutor's, powers, then the plaintiff ought to seek redress in the Judicial Review and not come to this Court in the manner he has. It was further submitted that, the plaintiff has not in the evidence presented, demonstrated that he is entitled to bring this case against the defendant and so he cannot ask this Court to grant him the injunction he seeks.

27. With regard to the plaintiff's contention that, the Defendant, as the Acting Public Prosecutor the defendant must consult the arresting officer and the complainant, (being the plaintiff), before deciding on whether to prosecute or decline to lay a charge, against John Maddision, Mr Mapiso submitted that, there is no such requirement under section 525 of the Criminal Code Act.

28. Finally, Mr. Mapiso submitted that the application is incompetent, in that the plaintiff has not made reference to the jurisdictional basis of this application and should be dismissed as being incompetent.

Plaintiff's submission in reply

29. Mr. Ame in reply submitted that, firstly the plaintiff is not attacking the official function of the Public Prosecutor because the defendant is named in his personal capacity and not as the Acting Public Prosecutor. 

30. Secondly, Mr. Ame submitted that, the balance of convenience favours the grant of injunction and referred me to paragraph 4 of a newspaper article (Annexure "F") by the plaintiff in support of his contention. 

31. Annexure "F" is a full page advertorial by the plaintiff criticizing Sir Arnold Amet for his conduct towards Ken Fairweather, and raising allegations of Sir Arnold Amet's involvement with the removal of Mr. Tamate, as Acting Public Prosecutor and replacing him with the defendant. As to the specific paragraph of the advertorial which I was asked to read, the plaintiff states in that paragraph that, he firmly believed that Sir Arnold influenced the defendant to file a Declaration to withdraw the charges against Mr Maddision and then, he goes on to raise the same matters that he raised against the defendant in his letter of complaint to JLSC and the Police.

32. Thirdly, Mr. Ame submits that, if the injunction is not granted, the defendant will continue to discharge his duties as the Acting Public Prosecutor and will also drop all charges in CR 1145 of 2010 and CR 1146 of 2010. 

33. Finally, Mr. Ame submitted that, the Court's jurisdiction to hear this application is Order 4 rule 40 National Court Rules and in the event that that is not accepted, than the Plaintiff relies on the Court's unlimited jurisdiction. 

RELEVANT LAW

34. The principles with respect to interlocutory injunction are well settled. The leading authority is the English case of American Cyanide Co. -v- Ethicon Ltd (1975) 1 A11 ER, 594, which case was referred to by the plaintiff's counsel. This case has been followed and applied in PNG on numerous occasions.

35. One of the earlier decisions of the National Court that adopted and restated the principles set out by the leading authority, is the case of Employees Federation of PNG -v- PNG Waterside Workers Union (1982) N393.

36. The principles as restated by Kapi DCJ (as he then was) have been summarised by Injia, J (as he then was) in the case of AGK Pacific (NG) -v- William Brad Anderson Karsan Constructions (PNG) Ltd and Downer Constructions (PNG) Ltd (2000) N2062. On page 3 of His Honour's decision, His Honour stated:

 "In essence, an applicant for interim injunction must satisfy two basic requirements:- 

1.	 That there is a serious question to be determined.

2.	That balance of convenience favours the grant of interim injunction in order to preserve status quo."

37. This was followed by Cannings J, in the case of Ewasse Landowners Association Inc. -v- Hargy Oil Palm Ltd (2005). In this case, Cannings, J went further and held that:

"When dealing with applications for interim injunctions the Court should consider three main issues. First, are there serious questions to be tried and does the plaintiff have an arguable case? Secondly, does the balance of convenience favour granting the injunction? Thirdly, is an injunction necessary to do justice in the circumstances of the case?"

APPLICATION

38. I have considered these principles as summarized by both Injia J (as he then was) and Cannings J, and find they are applicable to this case and apply them accordingly.

Serious questions to be tried

39. The first question to ask is, does the plaintiff, have a serious question to be tried in the substantive claim.

40. In order for the Court to be satisfied that the plaintiff has a serious question to be tried. The plaintiff must prove that his case is a serious one and not a speculative case which has a real possibility of ultimate success. Robinson -v- National Airlines Commission [1983] PNGLR 478 or stated by Cannings, J in Ewase Landowners Associated Incorporated -v- Hargy Oil Palms Ltd,

 …." The test is to ask: what chance does the plaintiff appear to have of succeeding in the substantive case?" 

 His Honour than went on to say:

"This requires the Court to identify with precision the cause of action that the plaintiff is relying on and then to consider the evidence that appears to be available in support of the elements of that cause of action". 

Substantive reliefs sought by the plaintiff

41. The plaintiff seeks two declarations and one permanent injunction. The declarations that the plaintiffs seeks are declarations that:

(a)	 The intention of the defendant to file a declaration pursuant to section 525 of the Criminal Code Act to give effect to his decision to decline to lay a charge against John Maddission in the proceeding CR No. 1445 of 2010 and Robin Flemming in the proceeding CR No. 1446 of 2010 is not part of the official function of the Public Prosecutor but rather, a matter of a personnel and individual attack by the defendant in retaliation against the plaintiff for lodging a complaint of perverting the course of Justice with respect to the proceeding CR 250 of 2010, against him (defendant) with Judicial Legal Services Commission and the Police. (underlying mine)

(b)	The referral of the defendant, to the Judicial Legal Services Commission and the Police by the plaintiff, has given rise to a conflict of interest situation in the defendant, and so he should not continue to discharge his duties as the Acting Public Prosecutor against the plaintiff. (underlying mine)

Finding on whether plaintiff has an arguable case

42. The issue is not simply whether the plaintiff has raised serious allegations. From the material before me, he obviously has. That is, his complaint in a nutshell is that, the Acting Public Prosecutor had before him sufficient evidence against the accused's in CR 250 of 2010, CR 1445 of 2010 and CR 1446 of 2010, but it seems, he did not consider all these evidence before filing a declaration in CR 250 of 2010 and is about to do the same in CR. 1445 of 2010 and CR. 1446 of 2010, and so he should be injuncted.

43. However, the law requires the plaintiff must do more than just raising these allegations. That is, the plaintiff has to show that he has some legal status or right in this dispute he has with the defendant. In other words, the plaintiff must have an arguable claim to the right he seeks to protect by injunction. He cannot just come to this Court and ask for an injunction to stop the defendant from performing a function enabled by constitution and statute, when there is no legal basis.

44. As set out in paragraph 41 above, the plaintiff seeks two declaratory reliefs. In Brother's Rugby Football Union Club Inc -v- Port Moresby Rugby Football Union Inc, (N2537) His Honour, DCJ, Injia, as he then was, said at pages 8-9

"A declaration relief is available as a declaratory of a right under law"

45. Applying this to the present case, I ask myself, what is the "right" the plaintiff has at law that would entitle him to seek the declaratory relief he is seeking.

46. To my mind, there is none. The plaintiff in my view has not pointed out a right and legal claim he seeks a declaration of that requires protection, and so I am inclined to accept the defendant's submission that the plaintiff does not have a serious question to be tried.

Damages

47. In light of the nature of the relief being sought by the plaintiff, I am of the view that, the issue of adequacy of damages is not an appropriate consideration in this case. Hence, I have not given consideration to this issue.

Does the balance of convenience favour granting the injunction?

48. The next question to ask is, does the balance of convenience favour granting the injunction?

49. The plaintiff submits that the balance of convenience favours the grant of injunction and states the following in support of his contention.

(a)	It is a matter of public interest that the Public Prosecutor should not unilaterally exercise the functions provided for in section 525 Criminal Code Act, but rather he should consult the complainant and the arresting officer. If no injunction is granted in this case, the Acting Public Prosecutor will without consulting the complainant and the arresting officer, file a declaration under section 525 Criminal Code Act, in the matter CR. 1445 of 10 and CR.1446 of 2010 as he did in CR. 250 of 2010, which would not be in the best interest of justice.

(b)	The defendant has a conflict of interest in the matter, in that he has been referred to Judicial Legal Services Commission and the Police by the plaintiff regarding his conduct in CR. 250 of 2010. Therefore if an injunction is not granted, to stop him personally from dealing with matters arising from complaints by the plaintiff, he will be bias in his decision towards the plaintiff when dealing with matters arising from the plaintiff's complaints, and do the same thing as he did in CR. 250 of 2010.

50. The defendant on the other hand contends that the balance of convenience does not favour the grant and make the following submission in support of his contention.

(a)	The defendant is the Acting Public Prosecutor, and is mandated by the Constitution and the relevant legislation to exercise his prosecution functions as set out in the Constitution and the relevant legislations. Such functions include the exercise of his discretion to elect the method of proceeding under section 525 Criminal Code Act, which the plaintiff is complaining about. Therefore, if an injunction is granted, to prevent him from performing his functions, that would be bad precedent especially when the law is that, Courts cannot interfere in the performance of official functions of a public office holder. 

(b)	The plaintiff's claim that, "the defendant has vested interest in the matters arising from the plaintiffs complaints and so he will act to the detriment of the plaintiff, if he is not injuncted and continues to handle matters arising from the plaintiff's complaint", is mere speculation and so balance does not favour the grant. 

51. In support of the contention that it would be bad precedent if this Court were to grant the injunction, the defendant relied on the case of Pato -v- Manjin [1993] PNGLR 6.

52. Pato -v- Manjin, is a Supreme Court case, which dealt with an appeal against a National Court decision that set aside an interim injunction restraining police officers from arresting the plaintiff. In that case, the Supreme Court stated:

Nevertheless, the most important consideration of all, in our view is whether a civil Court should restrain a criminal investigation by police exercising their constitutional functions to investigate charge and prosecute a person suspected of having committed a crime or criminal offence. That to us is the most fundamental issue here……

We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution.

If he claims such rights are violated, he has recourse pursuant to s.57 Constitution. We can't see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.

Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy by the two Engan Members of Parliament with the three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act…

With respect, the applicant's case in a nutshell, is simply that he does not want to be investigated and arrested for whatever reasons the Police might have, and just because he does not want that to happen to him, he cannot be justified in continuing the interlocutory injunction against the respondents. It is analogous to a Judge being restrained from dealing with a person's case because that person does not like to be death with by the Judge.

It is our view that the restraining order against the police, is not only outrageous and spurious, but an interference with the constitutional functions of the police.

53. I am of the view that the principles enunciated in the Pato case apply here, because it relates to the protection accorded to a public institution when carrying out its functions, roles or powers vested in them in either the Constitution, statute or both. In other words principles established in the said Supreme Court decision, is that, public institution whether it be the Police Force or Ombudsman Commission or in this case, the Office of the Public Prosecutor, which is charged with a statutory duty to do something (emphasis added) whether it be to investigate as in the Pato case or the exercise of a discretion to elect a method of proceeding under section 525 Criminal Code Act, as in the present case, should not be restrained from carrying out or performing their constitutional or statutory obligations. Consequently, the balance of convenience does not favour the grant of the interim injunction.

Is an injunction necessary to do justice in the circumstances of the case?

54. The final question to ask is, is an injunction necessary to do justice in the circumstances of this case?

55. The Office of the Public Prosecutor is established by section 176 of the Constitution which amongst other things provides that the Public Prosecutor will not be subject to the direction or control by any person or authority in the performance of his/her functions, which are set out in the Public Prosecutor (Office and Functions) Act, and any other legislation which may provide for the exercise of the Public Prosecutor's function, duties or powers, such as the Criminal Code Act. 

56. In light of what the Constitution and other relevant legislation say about the powers and functions of the Public Prosecutor, I am satisfied that it is not in the interest of justice nor in the interest of the public that the defendant, who is the Acting Public Prosecutor be separated from carrying out his lawful duty under section 525 of the Criminal Code Act, or be restrained from performing functions which he is empowered to apply or exercise. 

CONCLUSION

57. I am not satisfied that the plaintiff has a serious question to be tried. As to whether damages would be an adequate remedy, this was not considered based on my view that adequacy of damages was not an appropriate consideration in this case. If however, it was an appropriate consideration, and it was not considered to be an adequate remedy, the balance of convenience did not favour the grant of the interlocutory relief sought.

ORDERS

58. The order of the Court is that, the plaintiff's notice of motion filed on 2nd June 2011, seeking the interim injunction as set out in paragraph 2 of this judgment is refused, with costs of and incidental to the notice of the motion which are to be paid by the plaintiff to the defendant.

59. Given the orders above, it is not necessary for me to consider the defendants submission seeking dismissal of the plaintiff's application for failure to cite the jurisdictional basis of the plaintiff's application.

_______________________________________________
Ame Lawyers: Lawyer for the Plaintiff 
Solicitor-General: Lawyer for the Defendant