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Namah v Higgins [2018] PGNC 247; N7351 (5 July 2018)

N7351

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 299 of 2018

BETWEEN:
HON. BELDAN NORMAN NAMAH
Plaintiff

AND:
LEADERSHIP TRIBUNAL COMPROMISING HON. JUSTICE HIGGINS & SENIOR MAGISTRATES PATRICIA TIVESE AND ALEX KALANDI
Defendants

Waigani: Dingake J
2018: 29 & 30 May, 18 June, 2 & 5 July

PRACTICE AND PROCEDURE – Application for leave to apply for Judicial Review in terms of Order 16 Rule 3 and for Stay in terms of Order 16 Rule 4(8) (a) – whether the applicant has met the requisite test – Applicant met all the prerequisites – Leave granted.

Cases Cited:

Bau Waulas v Veronica Jigede (2009) N3781;
Digicel (PNG) Ltd v Jim Miringtoro (2015) PGSC 27; N6064;
Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22;
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617;
NTN v Board of Post and Telecommunications Corp [1987] PNGLR 70;
Pepi Kimas v Boera Development Corporation Ltd (2012) SC1172;
Philip Kamo v The Commissioner of Police (2001) N2084;
The Honorable Peter O’Neill v Ombudsman Commission of PNG (2014) N5642;
Vela Konivaro v The Leadership Tribunal, OS(JR) No. 901 of 2016;

Counsel:

Mr G Sheppard & Mr J Purvey, for the Plaintiff
Mr M Wangatau & Mr P Ifina, for the Defendants

5 July, 2018

1. DINGAKE J: This is an application for leave to apply for judicial review of the decision of the Leadership Tribunal made in LT 6 of 2015, delivered on the 9^th of April, 2018.
   
2. The application is made pursuant to Order 16 Rule (3) of the National Court Rules.
   
3. The applicant also prays, pursuant to Order 16 Rule 4(8) (a), for an Order that the grant of leave operate as a stay of the decision of the Leadership Tribunal delivered on the 9^th of April, 2018.
   
4. On the 9^th April 2018, the Leadership Tribunal comprising of the Honourable Justice Terence Higgins, Senior Magistrates Patricia Tivese and Alex Kalandi found the plaintiff (applicant) guilty of misconduct in office and recommended that he be dismissed from Office as Member elect for the Vanimo–Green River electorate.
   

5. The issue that sharply falls for determination is whether or not leave should be granted to the plaintiff/applicant to apply for judicial review.

6. This matter was heard on the 29^th May, 2018, and subsequently on the 2^nd July 2018, after the Court re-opened the case so that it may be addressed on what appeared to the Court to be an incomplete record.

7. A complete record of the proceedings of the Second Leadership Tribunal was availed to the Court and the defendant prior to the hearing of the 2^nd July 2018, and the Court is satisfied that a complete record was provided as previously ordered by the Court. No objections were raised by the defendant that the record is incomplete.

8. The plaintiff is a Member of Parliament and the member–elect for the Vanimo – Green River Electorate in Sandaun Province having been first elected in 2007.

9. The applicant was referred to the Leadership Tribunal following allegations of misconduct in office against him. The Leadership Tribunal comprised of the now retired Justice Poole and Senior Magistrates Mark Selef Kariu and Ernest Wilmot. Purely for convenience, I refer to this Tribunal as the First Leadership Tribunal, and the subsequent one as the Second Leadership Tribunal.

10. Following a Court challenge by the applicant, a permanent injunction was obtained against the First Leadership Tribunal and consequently, the First Leadership Tribunal was permanently restrained from further convening in relation to the allegation of misconduct in office against the applicant and inquiring into and determining those allegations of misconduct in office.

11. Thereafter, the Second Leadership Tribunal comprising of Hon. Justice Terence Higgins, Senior Magistrates Patricia Tivese and Alex Kalandi was appointed.

12. The applicant is aggrieved by the decision of the Second Leadership Tribunal referred to earlier on two main grounds:

1. Firstly, the applicant avers that following the permanent injunction against the First Leadership Tribunal, the process of constituting the Second Leadership Tribunal ought to have started de novo, in other words, the Ombudsman Commission should have issued a fresh referral to the Public Prosecutor and the Public Prosecutor should have made a fresh request to the Chief Justice to appoint a Leadership Tribunal to inquire into and determine the allegations of misconduct in office. In a nutshell, the applicant contends that the whole process of constituting the Second Leadership Tribunal should have started from scratch and all the steps prescribed by law complied with. He avers that failure to start from the beginning and follow all the mandatory steps prescribed by law constituted an impermissible error of Law.
2. Secondly, the applicant complains that the penalty that the Leadership Tribunal suggested, namely, to recommend that he be dismissed from office was done without affording him an opportunity to be heard, on the appropriate punishment.
   

13. To succeed in an application for leave to apply for judicial review, the applicant is required by law to satisfy the following requirements:

1. He has locus standi or sufficient interest in the matter, the subject of the review;
2. There are no other statutory or administrative remedies that have to be exhausted to challenge the subject decision;

100. He has an arguable prima facie case; and

4. The application is brought without undue delay or within four (4) months after the date of the decision, if the application is for an order of certiorari. (Digicel (PNG) Ltd v Jim Miringtoro 2015 PGSC27; N6064; The Honorable Peter O’Neil v The Ombudsman Commission of PNG (2014) N5642).
   

14. The State is not opposed to the relief sought. Counsels for the Defendants and State, Mr. Milfred Wangatau and Mr Poli Ifina, informed the Court that they are not opposed to the relief sought.

15. Notwithstanding the fact that the application is not opposed, the Court still has to be satisfied that the application is warranted.

16. I have gone through all the papers filed of record with a fine comb and have listened to the submissions of the parties with great care. I am satisfied that the applicant, being the person directly affected by the decision, has locus standi to bring this proceedings; and that there are no other statutory or administrative remedies that have to be exhausted to challenge the subject decision; and also that the application was brought in time, slightly over one month after the decision was delivered.

17. With respect to the factor of an arguable case, that the applicant is required to establish, this Court is not required to engage in an exhaustive analysis of the merits or demerits of the case; it is sufficient, if on a quick perusal of the materials before it , there is a prima facie arguable case, or a serious issue to be tried, which on further investigation by the Court might favour the grant of the claim or the relief sought by the plaintiff (Pepi Kimas v Boera Development Corporation Ltd (2012) SC1172; Digicel (PNG) Limited v Jim Miringtoro 2015 PGSC27; N6064).

18. In determining whether there is an arguable case, the Court is not concerned with determining the merits of the case: (Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22).

19. In the case of Geno, cited above, 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 principles were also adopted and applied by the National Court in NTN v Board of Post and Telecommunications Corp [1987] PNGLR 70, and at page 74 of the said judgment the Court observed that:

“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 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.”

20. In this matter, I am persuaded that the applicant has demonstrated an arguable case, if only for the reason that, on a quick perusal of the materials filed of record, it seems to me, prima facie, that he was denied the opportunity, to be heard before the Tribunal determined an appropriate penalty. It is my considered view that prior to considering whether the Applicant should be removed from office the Tribunal ought to have given him the opportunity for further submissions and or evidence.

21. I have read and re-read the transcript of the proceedings before the second Leadership Tribunal and I have not found any record or evidence, suggesting that after being found guilty, the applicant was afforded the opportunity to address the Court before punishment was pronounced.

22. The principles of natural justice require that the applicant should have been advised of the finding of guilt and then given further opportunity to address the Leadership Tribunal on the penalty (Philip Kamo v The Commissioner of Police (2001) N2084; Bau Waulas v Veronica Jigede (2009) N3781; Vela Konivaro v The Leadership Tribunal, OS(JR) No. 901 of 2016).

23. In the case of Kamo v Police [2001] N2084, Injia J (as he then was), in relation to what must be done once a guilty verdict has been pronounced stated that:

“It would not be proper and quite out of procedure to speculate if the member is going to plead guilty or not guilty and invite him to make a reply on the appropriate penalty as well when he makes his reply on the issue of conviction. It would also be pre-mature to postulate on punishment at that stage. If the charge is determined and a not guilty verdict is pronounced, that is the end of the matter. But if a guilty verdict is pronounced, then the proceedings must advance to the next phase of determining the appropriate penalty. Principles of good administration and natural justice would require that the member be advised of the finding of guilt and then given a further opportunity to address on penalty.” (emphasis mine).

24. In the case of Konivaro v The Leadership Tribunal OS (JR) 901 of 2016 (delivered 13 April 2018) Injia CJ, in quashing the decision of a Leadership Tribunal (LT 1 of 2013) at [22] held:

“22. ... It is clear that the NEC decided the question of removal without giving the applicant an opportunity to be heard on that question, .... A decision on the question of removal is a separate and distinct decision made by the appointing authority but before it is made, the case has to be put to the COH and the COH invited to give his response ...” (emphasis mine)

25. Having regard to the above authorities, I am fortified in my opinion that it is absolutely imperative that a decision maker must afford the person facing disciplinary proceedings or a person who stands to be adversely affected by a decision, an opportunity to be heard before deciding on the appropriate penalty to impose.

26. As to whether the process of establishing the Second Leadership Tribunal should have started from the start, I consider the issue moot and arguable.

27. With respect to the application of stay of the decision of the defendants; it seems to me that having come to the conclusion that the applicant has established that he has a prima facie arguable case, and that there is a serious issue to be tried, it would be unjust that the decision of the Leadership Tribunal should be allowed to take effect, pending an appeal which may succeed. In my mind the balance of convenience and the interests of justice require that a stay be granted to preserve the status quo.

28. Significantly, Order 16, Rule 3 (8) of the National Court Rules provides that:

“(8) Where leave to apply for judicial review is granted, then —

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and (emphasis mine).

(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.”

29. In all the circumstances of this case, I am satisfied that the applicant has satisfied all the requirements mentioned earlier.

30. In the result it is ordered that:

(a) Pursuant to Order 16 Rule 3 of the National Court Rules the applicant is granted leave to apply for judicial review of the decision of the Leadership Tribunal made in LT 6 of 2015 delivered on the 9^th of April, 2018, in which the Leadership Tribunal found the plaintiff guilty of misconduct in office, and recommended that the plaintiff be dismissed from office as Member-elect for the Vanimo– Green River Electorate.
(b) Pursuant to Order 16 Rule 4 (8) (a) an Order that the grant of leave operate as a stay of the decision of the Leadership Tribunal delivered on the 9th of April, 2018.
(c) Costs of and incidental to this originating summons be reserved.
(d) The time for entry of this order be abridged to the time of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiffs
Office of Solicitor General: Lawyers for the Defendants