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Namah v Higgins [2020] PGNC 189; N8415 (16 July 2020)

N8415

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 299 OF 2018

HON BELDEN NORMAN NAMAH
Plaintiff

V

LEADERSHIP TRIBUNAL COMPRISING
THE HONOURABLE JUSTICE TERENCE HIGGINS AND
SENIOR MAGISTRATES PATRICIA TIVESE AND ALEX KALANDI
First Defendant

PUBLIC PROSECUTOR
Second Defendant

OMBUDSMAN COMMISSION
Third Defendant

CHIEF JUSTICE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Cannings J
2020: 14^th, 16^th July

JUDICIAL REVIEW – remedies – appropriate remedies where leadership tribunal makes jurisdictional error in determination of penalty – whether tribunal decision as to guilt ought to be preserved – whether matter of penalty should be remitted to tribunal to be determined according to law – whether a different tribunal ought to be appointed to consider penalty afresh – whether appropriate to quash entire decision of tribunal.

The National Court declared that a leadership tribunal, which decided that the plaintiff was guilty of misconduct in office and that he be recommended for dismissal from office, failed to afford natural justice to the plaintiff, as it failed to give him the opportunity to be heard before deciding to recommend that he be dismissed from office. A further hearing was conducted on the question of what further orders, declarations or other remedies, if any, ought to be granted. The plaintiff contended that the Court should grant: (a) an order in the nature of certiorari and quash in its entirety the decision of the tribunal; (b) a declaration that the tribunal, the Public Prosecutor and the Ombudsman Commission are functus officio in relation to the matter regarding the plaintiff that was referred to the tribunal; (c) a permanent stay of the allegations of misconduct in office against the plaintiff; and (d) a declaration that the plaintiff is no longer suspended from duty. The defendants responded that: (a) though it would be appropriate to quash the decision of the tribunal as to penalty, its decision as to verdict should be preserved and the question of penalty remitted to a freshly appointed tribunal, or to this Court, for hearing and determination; (b) no declaration as to functus officio ought to be made as that issue had already been resolved in these proceedings; (c) the application for a permanent stay should be refused; and (d) it was unnecessary to make any declaration regarding the plaintiff’s suspension.

Held:

(1) It was appropriate and in the interests of justice to quash the entire decision of the tribunal, not only that part of its decision as to penalty.

(2) The application for a declaration that the tribunal and other authorities are functus officio was refused.

(3) It was appropriate and in the interests of justice to grant a permanent stay of the allegations against the plaintiff.

(4) It was appropriate and in the interests of justice to grant a declaration that by virtue of resolution of these proceedings the suspension of the plaintiff no longer applies.

(5) Declarations and orders were made accordingly and the proceedings were thereby determined and the file closed.

Cases Cited

The following cases are cited in the judgment:

Application by John Mua Nilkare [1998] PNGLR 472
Application pursuant to Constitution, Section 18(1) by the Honourable Belden Norman Namah in his capacity as Leader of the Opposition (2020) SC1946
Belden Norman Namah v Leadership Tribunal & Others (2020) N8407
Herman Joseph Leahy v Pondros Kaluwin (2014) N5813
Mision Asiki v Manasupe Zurenuoc (2005) SC797
SC Ref No 3 of 2011 & 21 Related Matters (2013) SC1236

JUDICIAL REVIEW

This was a hearing on remedies in relation to an application for judicial review.

Counsel

G J Sheppard & G Purvey, for the Plaintiff
M Boas, for the First Defendant
G Geroro for the Second Defendant
R P Koralyo & R Homi, for the Third Defendant
T Tanuvasa, for the Fifth Defendant

16^th July, 2020

1. CANNINGS J: This Court found on 7 July 2020 in these judicial review proceedings that a leadership tribunal (the first defendant) made a jurisdictional error in the course of its decision of 9 April 2018 to find the plaintiff guilty of misconduct in office and to recommend his dismissal from office.

2. The error lay in the tribunal’s failure to afford the plaintiff natural justice in that he was not given a separate hearing as to penalty. A declaration to that effect was granted and directions were given for a further hearing on the question of what further remedies, if any, should be granted (Belden Norman Namah v Leadership Tribunal & Others (2020) N8407).

3. That hearing has been conducted and I have decided that further remedies should be granted. This judgment sets out the contentions of the plaintiff, the response by the defendants, my determination of the issues and the formal order of the Court.

ORDER OF 7 JULY 2020

4. The order of 7 July 2020, with the most relevant parts for purposes of this hearing being underlined, was in the following terms:

1. It is declared that there was no error of jurisdiction under the Constitution or the Organic Law on the Duties and Responsibilities of Leadership arising from the alleged errors of jurisdiction referred to in grounds of review 1, 2, 3 and 4(a) in the Order 16, Rule 3(2)(a) statement filed 11 May 2018, in relation to:
   

(a) the Public Prosecutor’s decision and request to the Chief Justice dated 8 November 2016 for appointment of a leadership tribunal;

(b) the appointment by the acting Chief Justice on 28 September 2017 of the leadership tribunal, being the first defendant in these proceedings (the “Higgins tribunal”); or

(c) the referral on 18 October 2017 by the Public Prosecutor of the matter (being allegations of misconduct in office) regarding the plaintiff, to the Higgins tribunal; or

(d) the decision of the Higgins tribunal of 9 April 2018 to find the plaintiff guilty of misconduct in office and recommend his dismissal from office; or

(e) other decisions or processes made or undertaken by the Public Prosecutor and/or the Chief Justice in relation to the prosecution of the plaintiff’s matter before the Higgins tribunal.

2. It is declared that there was an error of jurisdiction under ss 28(1)(g), 28(5) and 59 of the Constitution and s 27(4) of the Organic Law on the Duties and Responsibilities of Leadership arising from the alleged errors of jurisdiction referred to in ground of review 4(b) in the Order 16, Rule 3(2)(a) statement filed 11 May 2018, in that part of the decision of the Higgins tribunal that recommended that the plaintiff be dismissed from office and that other penalties be imposed on the plaintiff, arising from the failure of the Higgins tribunal to afford natural justice to the plaintiff, in that it failed to give the plaintiff the opportunity to be heard before it decided to recommend that he be dismissed from office.
   
3. There will be a further hearing in these proceedings, to be conducted in accordance with directions of the Court, to hear submissions from the parties as to what further orders, declarations or other remedies, if any, ought to be granted, including whether all or any of the relief sought in the plaintiff’s notice of motion filed 26 July 2018 ought to be granted.
   
4. The question of costs of these proceedings will be addressed at the further hearing.
   

PLAINTIFF’S CONTENTIONS

5. Mr Sheppard, for the plaintiff, referred to the notice of motion filed on 26 July 2018, which is the formal document by which remedies were sought following the grant of leave for judicial review. By that notice of motion the plaintiff sought:

1. An order in the nature of certiorari to bring into Court and quash, in its entirety, the decision of the defendant delivered 9 April 2018.
   
2. A permanent stay of the allegations of misconduct in office against the plaintiff as contained in the charges and statement of reasons dated 23 November 2015 and presented to the Leadership Tribunal in proceedings registered as LT 6 of 2015.
   
3. The defendant pay the plaintiff’s costs of and incidental to the proceedings.
   
4. Such further and other orders or directions this Honourable Court considers appropriate.
   

6. At the hearing on remedies, the plaintiff contended that the Court should grant:

(a) an order in the nature of certiorari, in terms of paragraph 1 of the notice of motion, and quash in its entirety the decision of the tribunal;

(b) a declaration that the tribunal, the Public Prosecutor and the Ombudsman Commission are functus officio in relation to the matter regarding the plaintiff that was referred to the tribunal and became the subject of its decision of 9 April 2018 (note that the application for this remedy was made orally, however it can be regarded as falling within paragraph 4 of the notice of motion);

(c) a permanent stay, in terms of paragraph 2 of the notice of motion, of the allegations of misconduct in office against the plaintiff; and

(d) a declaration that the plaintiff is no longer suspended from duty (note that the application for this remedy was made orally, however it can be regarded as falling within paragraph 4 of the notice of motion).

DEFENDANTS’ RESPONSES

7. The defendants’ response to those contentions, made by Mr Geroro for the Public Prosecutor, Ms Koralyo for the Ombudsman Commission and Mr Tanuvasa for the State (with the tribunal, as first defendant, represented by Mr Boas, properly making no submissions) was:

(a) though it would be appropriate to quash the decision of the tribunal as to penalty, its decision as to verdict should be preserved and the question of penalty remitted to a freshly appointed tribunal (that being the preferred position of the Ombudsman Commission and the State) or to this Court(that being the preferred position of the Public Prosecutor), for hearing and determination;

(b) no declaration as to functus officio ought to be made as that issue had already been resolved in these proceedings;

(c) the application for a permanent stay should be refused; and

(d) it is unnecessary to make any declaration regarding the plaintiff’s suspension.

DETERMINATION

8. The first point to make in determining the appropriate remedies is that judicial review remedies are inherently discretionary in nature. The second point is that all options presented by the parties, including the unconventional one presented by the Public Prosecutor (asking this Court to determine the appropriate penalty) are available.

9. I adopt the position of the majority of the Supreme Court (Amet CJ and Los J) in Application by John Mua Nilkare [1998] PNGLR 472. In judicial reviews (and that case was, as here, judicial review of the decision of a leadership tribunal), full voice and effect must be given to s 155(4) of the Constitution when the Court is exercising its discretion as to remedies in cases where a plaintiff has proven one or more grounds of judicial review. Section 155(4) (the National Judicial System) states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

10. None of the options presented by the plaintiff or the defendants is unreasonable or unsuitable or unworkable.

11. In cases where the plaintiff succeeds with a ground of judicial review, the Court will look at all the circumstances of the particular case before it, to craft a proper remedy, such as is necessary to do justice in those circumstances. This was the principle highlighted by Mr Sheppard in his submission, underlined by the decision of the Supreme Court (Jalina J, Cannings J, Manuhu J) in Mision Asiki v Manasupe Zurenuoc (2005) SC797, in which it was held:

It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J stated in Tohian v Geita and Mugugia (No 2) [1990] PNGLR 479, National Court:

... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.

The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose. Examples of cases where the court upheld an application for judicial review but did not grant a remedy are: Albert Karo v Ombudsman Commission SCA No 89 of 1995, 07.04.95, unreported, Supreme Court, Amet CJ, Los J, Sheehan J; John Mua Nilkare v Ombudsman Commission (1996) SC498, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J; and Allan Pinggah v Margaret Elias, Peter Tsiamalili, Public Services Commission and The State (2005) N2850, National Court, Injia DCJ.

The starting point is to look at the decision and the nature of the excess of jurisdiction that the court has identified. Here it was the first respondent’s decision of February 2001 – to not accept the Public Services Commission’s recommendation – that has been found to have been infected by error of law and in breach of the principles of natural justice. The decision that was made was wrong in law and flagrantly so. It cannot stand and therefore it will be quashed. The appellant’s Order 16, Rule 3(2)(a) statement did not expressly seek such an order but we consider that it is sufficiently encompassed by the order for reinstatement that has been expressly sought. It follows that the first respondent’s decision not to accept the Public Services Commission’s recommendation is void.

12. Having regard to those principles in Nilkare and Asiki, I now determine the plaintiff’s application for the four categories of remedies: (a) certiorari; (b) functus officio; (c) permanent stay: and (d) lifting of suspension.

(a) Certiorari

13. It is appropriate and in the interests of justice to quash the entire decision of the tribunal, not only that part of its decision as to penalty, for the following reasons:

1. the jurisdictional error that occurred (breach of natural justice) was serious and acute;
   
2. the error infected the whole decision of the tribunal;
   
3. the decision (which actually consisted of two separate statements of reasons for decision) conflated the issues of verdict and penalty, making it difficult and impracticable to sever from the entire decision, the part of it relating to penalty;
   
4. as to the part of the decision that might be regarded as statements of reasons as to the guilty verdict, there was no clear and coherent statement of what the allegations were, especially with the most serious allegations of misconduct in office, and there was no formal or readily identifiable finding of misconduct in office under s 27(1) of the Constitution or any other provision of the Leadership Code;
   
5. apart from the difficulty in identifying the parts of the decision in the two statements of reasons that would be appropriate to remit to another tribunal or to this Court, there is no readily available and conventional means by which this could be done, and this reinforces the inappropriateness of this option, in the peculiar circumstances of this case.
   

(b) Functus officio

14. I refuse the application for a declaration that the tribunal and other authorities are functus officio. I uphold Mr Tanuvasa’s submission that this is a rehash of issues already been raised and determined against the plaintiff in these proceedings, and is caught by the doctrine of issue estoppel.

(c)Permanent stay

15. It is appropriate and in the interests of justice to grant a permanent stay of the allegations against the plaintiff as:

1. this is the second time that leadership tribunal proceedings on this matter have miscarried, due to no fault of the plaintiff;
   
2. the most serious allegation concerns an incident that happened eight years ago on 24 May 2012, and since then the plaintiff has been re-elected to the National Parliament on two separate occasions;
   
3. the Leadership Code proceedings against the plaintiff, beginning with the referral of the matter by the Ombudsman Commission to the Public Prosecutor in April 2015, were not initiated until almost three years after the incident of May 2012, which in itself was a significant delay, and have been characterised by protracted delays since then for a period of over five years, which have been predominantly caused, not by the plaintiff, but by the defendants and to some extent by this Court (which has taken two years since the granting of leave to organise the trial of the application for judicial review);
   
4. the most serious allegation of misconduct against the plaintiff became the subject of a charge of contempt of court in 2012, which was withdrawn on the instructions of then Chief Justice, Sir Salamo Injia, in 2013(SC Ref No 3 of 2011 & 21 Related Matters (2013) SC1236);
   
5. the spectre of appointment of a third leadership tribunal creates an unacceptable risk of breach of the right of the plaintiff to the full protection of the law under s 37 of the Constitution, in particular his right under ss 37(3) and/or 37(11) to have allegations of misconduct in office against him fairly heard within a reasonable time (Herman Joseph Leahy v Pondros Kaluwin (2014) N5813);
   
6. it is incumbent on all constitutional office-holders and institutions involved in administration and enforcement of the Leadership Code to act quickly and decisively when there is clear evidence of very serious allegations of misconduct in office involving a leader – the incident of 24 May 2012 was extremely serious and warranted immediate and decisive action, but that did not happen, justice has miscarried on more than one occasion and in the intervening period the plaintiff has, the evidence suggests, been a paragon of cooperation with the justice system – there comes a time when enough is enough, and that time is now.
   

(d) Suspension

16. It is appropriate, in view of the recent decision of the Supreme Court in Application pursuant to Constitution, Section 18(1) by the Honourable Belden Norman Namah in his capacity as Leader of the Opposition (2020) SC1946, and in the interests of justice to grant a declaration that by virtue of resolution of these proceedings the suspension of the plaintiff under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadershipno longer applies and is lifted.

CONCLUSION

17. The plaintiff will be substantially awarded the relief he sought in these judicial review proceedings. He has not succeeded on all issues, however, so I determine that it is fair and appropriate that, though costs will follow the event, the plaintiff will be awarded half of his total costs. The costs order will apply against the State, which is the appropriate entity to carry liability for costs in a proceeding of this nature.

ORDER

18. Further to the order of 7 July 2020:

1. The application, made by paragraph 1 of the notice of motion filed 26 July 2018, is substantially granted, and accordingly an order in the nature of certiorari is granted, by which the decision of the first defendant of 9 April 2018 is brought into Court and quashed in its entirety.
   
2. The application, made in submissions of counsel for the plaintiff and via paragraph 4 of the notice of motion filed 26 July 2018, for a declaration that the Ombudsman Commission, the Public Prosecutor and the Higgins tribunal are functus officio vis-a-vis the reference the subject of these proceedings, is refused.
   
3. The application, made by paragraph 2 of the notice of motion filed 26 July 2018, is substantially granted, and accordingly a permanent stay is granted of the allegations of misconduct in office contained in the charges and statement of reasons dated 23 November 2015 and presented to the leadership tribunal in proceedings registered as LT 6 of 2015.
   
4. The application, made in submissions of counsel for the plaintiff, and via paragraph 4 of the notice of motion filed 26 July 2018, for a declaration that the plaintiff’s suspension from duty no longer applies, is substantially granted and accordingly it is declared that for the purposes of the proceedings under the Leadership Code the subject of these proceedings, those proceedings are by force of this Order resolved with immediate effect and the plaintiff’s suspension from duty under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadershipis lifted with immediate effect.
   
5. The fifth defendant shall pay half of the plaintiff’s costs of the proceedings, on a party-party basis, which shall if not agreed be taxed. Other parties will bear their own costs.
   
6. These proceedings are thereby determined and the file is closed.
   

Judgment accordingly.
_________________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for the First Defendant
Geroro Lawyers: Lawyers for the Second Defendant
Counsel to the Commission: Lawyer for the Third Defendant
P Ifina, NJSS Principal Legal Officer: Lawyer for the Fourth Defendant
Solicitor-General: Lawyer for the Fifth Defendant