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Yama v Yalamu [2020] PGNC 44; N8214 (2 March 2020)

N8214

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) No. 07 of 2020

PETER CHARLES YAMA
Plaintiff

V
STEVEN YALAMU
First Defendant

AND
PNG ROYAL POLICE CONSTABULARY
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 18^th & 20^th February

PRACTISE & PROCEEDURE – Human Rights – Originating summons – Notice of motion – Sections 59 (2) & 155 (4) Constitution – same proceedings facts law – Whether Multiplicity of proceedings amount to abuse –– Res Judicata – Whether Merits of issue determined before court – Abuse of process – Court to protect its own process – proceedings dismissed for abuse – cost follow event.

Cases Cited:

Ekepa v Gaupe [2004] PNGLR 22

Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522

Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906

Yama v Yalamo [2020] PGSC 3; SC1915

Counsel:

P. B. Lomai, for Plaintiff
T. Mileng & A. Emil, for Defendants.

RULING

2^nd March, 2020

1. MIVIRI, J: This is the Ruling on the originating summons dated the 20^th February 2020 of the applicant seeking injunctive orders pursuant to sections 59 (2) and 155 (4) of the Constitution including Order 12 rule 1 of the National Court Rules against the defendants.
   
2. At the outset the court has supplied both counsels copies of the supreme court judgment Yama v Yalamo [2020] PGSC 3; SC1915 (16 February 2020) filed as SCA No. 16 of 2020 between Peter Charles Yama as appellant and Steven Yalamo as First Respondent, the Royal Papua New Guinea Constabulary as second respondent and the Independent State of Papua New Guinea as third respondent invited at the outset to address whether it has jurisdiction to hear the matter.
   
3. Applicant has submitted that it is a human rights application and the inherent jurisdiction of this court is invoked pursuant to section 155 (4) of the Constitution. The problem is if this is an application a fresh this court will certainly be acquainted and will deal with the fresh facts as it were. That is the line of argument advanced by the defendants.
   
4. Examining the matter, it is the same matter by its facts and circumstances brought before the Supreme Court presided by Justice Makail on the 15^th and 16^th February 2020 referenced as SCA No. 16 of 2020 (supra). And the facts recounted there are also pursued here that after the 2017 National General Election there were two Election petitions filed both against the Plaintiff, one was by one Jerry Singirok EP 69 of 2017 and the other by one James Yali EP No 63 of 2017. The former was withdrawn whilst the latter was dismissed.
   
5. An allegation of bribery arose during that election by one Nixon Kavo and John Tumaing, both electoral officials of K50 and K500 respectively allegedly by the plaintiff. Both men were charged by police, tried and convicted by the Madang National Court on the 3^rd October 2018 under section 97C (2) and both have since appealed to the Supreme Court which is pending hearing.
   
6. Arising from that the police in Madang by letter dated and referred to in the affidavit of the plaintiff as “PCY 1” and also office of the Commissioner of Police “PCY2” have invited the plaintiff for interview. He has not attended there and sought a stay before the National Court which was dismissed and so an appeal before the Supreme Court referenced above. A stay order was sought against Police from inviting, intervening, arresting or attempting to arrest him. The Supreme court confirmed that there was no cause of action. That he had not been arrested nor charged for the same bribery offence. The evidence is he has been investigated and has come to the part where he is given the opportunity to be heard. And this process will be completed upon his attendance. It is the very subject yet again third time upon which he seeks a stay alleging breach of human rights. The merits have been determined upon the facts and circumstances and the relevant law dismissal by this court from which he has appealed to the Supreme Court. It is the very same facts and circumstances and the law and has not changed its substance so that it is afresh for the first time before this court even though named as human rights application.
   
7. It is not clear as to what charges will be laid if that is the case. The plaintiff is innocent until proven guilty accordingly to law. It is also clear that he has a right to remain silent and is not obliged to answer any questions or give evidence relating to allegations levelled at him. It is also clear that Police must accord the accused an opportunity to respond to the allegations that are levelled at him. He is not obligated to answer any questions posed by Police.
   
8. These are facts on the merit in law that have been determined fully by the Supreme Court presided by Justice Makail. By hierarchy of the courts the jurisdiction of that court overrides the National court here. There is no jurisdiction to re hear the matter a new as a human rights originating summons. An abuse of process would eventuate and has eventuated because this is the second time that this matter is now before this court yet again in the same form and manner imploring the same a stay on the police not to interview the applicant over the allegation of bribery. Because the same issues have been determined by this court. It would be multiplying the same process repeatedly within the meaning of Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008). There the Supreme Court determined that multiplicity of proceedings on the same matter was improper as the merits had been determined. The doctrine of res Judicata applied and it was an abuse of process to so institute. Which was a complete defence and applied here given the facts. By that law applicable here the proceedings will suffer the same fate dismissal as an abuse of process. The law relied upon by the applicant have no application given and his submission are rejected.
   
9. This is not a case where there have been material change in the facts since the last when the matter came to court: Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522 (29 October 2003) and it has been presented that there have been previously undisclosed facts that have since come to light changing the circumstance so that the matter is afresh before the court now. Or that there were erroneous legal facts leading to the decision at first instance: Ekepa v Gaupe [ 2004] PNGLR 22 (13 October 2004). That is not the case by the facts here.
   
10. Consequently, the application is not made out and fails in all respects as there is no jurisdiction for this court to hear and determine the matter. It is res judicata and as such the proceedings are dismissed in its entirety as an abuse of process. The National court will not override the jurisdiction of the Supreme Court.
    
11. Costs will follow the event.
    

Orders Accordingly.

__________________________________________________________________

Lomai & Lomai Attorney : Lawyer for the Plaintiff/Applicant

Office of Solicitor General : Lawyer for the Defendants