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Yama v Manning [2021] PGNC 312; N9146 (14 September 2021)

N9146

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) NO. 34 OF 2021 (IECMS)


BETWEEN:
HONORABLE PETER CHARLES YAMA MP, GOVERNOR MADANG PROVINCE
First Plaintiff


AND:
JOESPH BONOMANE KUNDA & HELEN KANIMBA & LOIMENG BANDE & PAUL AMERA & JOSEPH AKA & ANTON KAMING & RICHARD NAGOS & REISINO PENI & HENRY KAMBUKA
Second Plaintiffs


AND:
DAVID MANNING COMMISSIONER OF POLICE
First Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Miviri J
2021: 13th & 14th September


PRACTICE & PROCEDURE – Human Rights – Writ of Summons Protection of Human Rights – Notice of Motion – Interim Stay of Criminal Proceedings – Sections 407 (1) (b) & 92 (1) Criminal Code Act – Section 106 (2)Public Finance Act – Constitutional Duties Sections 197 & 198 –Protection of Rights – Checks Balances in Criminal Process – No Evidence Abuse by Police – Motion refused – Cost follow event indemnity Basis.


Cases Cited:


Mai and Avi, The State v [1988-89] PNGLR 56
In re Powers, functions, duties, and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388
Avia Aihi v The State (No 1) [1981] PNGLR 81
Thompson v Kalaut [2011] PGNC 31; N4265
Wartoto v State [2015] PGSC 1; SC1411
Independent State of Papua New Guinea v Tamate [2021] PGSC 54; SC2132
State v Tanedo [1975] PNGLR 395
Pato v Manjin [1999] PGSC 9; SC622
Pruaitch v Manek [2019] PGSC 123; SC1884
Baker, Re [1971-72] PNGLR 78
Yabara v The State [1984] PNGLR 378
Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582
McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646
Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870
Paraka v Peng [2016] PGSC 86; SC1622


Counsel:


D. Dotaona, for Plaintiff
C. Kuson, for Defendants


RULING

14th September, 2021

  1. MIVIRI, J: This is the ruling on the notice of motion of the 06th September 2021 by the plaintiffs seeking:
  2. That notice of motion is interlocutory to the substantive cause of action filed by way of the Writ of Summons and Statement of Claim detailing claiming breach of human rights contrary to section 49 of the Constitution, Section 42 (2), section 37 (1) and of being proscribed act within the meaning of section 41. That in summary the Police have abused their powers. And therefore, the warrants of arrests issued by the Ramu District Court are unlawful and be quashed forthwith.
  3. Further the Criminal Prosecution commenced by Police be stayed permanently. And it be declared that the actions of the police in the detention of the second Plaintiffs was harsh oppressive null and void breaching section 41 (1) (a) (b) & (c) of the Constitution. And damages for the breach and sanctions pursuant to section 23 of the Constitution.
  4. It is necessary to settle issues that are not disputed in this proceedings at the outset. Primarily the Constitution sees all men equal in the eyes of the law and all are entitled to the full protection of the law; section 37 Protection of the law. The applicants are entitled to the full protection of the law. All men are free and have freedom according to law; section 42 of the Constitution. These will be restricted by compliance of the law not without, Mai and Avi, The State v [1988-89] PNGLR 56. The People of Papua New Guinea are also entitled by the criminal process and Section 197 and 198 of the Constitution to the duties of the Police Force under the Constitution. And the Commissioner of Police is not answerable and can issue directions to his men in the duties that are called of his office, In re Powers, functions, duties, and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014). There is no evidence before me that he has directed Assistant Commissioner of Police Divisional Commander of Momase Police Peter Guinness not to prosecute or arrest the applicants in any way or form. An affidavit to that effect by the Commissioner of Police has not been filed. Reliance on media has been without that specific evidence independent of the applicants’/plaintiffs confirming that assertion.
  5. Relevantly the second plaintiffs do not have affidavits and material filed in support of the assertions made by the first plaintiff/applicant. This is particularly important as if it is the assertion that all are numbered together because of a political witch hunt, then the evidence should speak. Here the first plaintiff/applicant is alone in his assertion not supported by his co accused. Even then independent evidence will distil the truth and veracity. That is not set out here except documents that emanate out of the criminal process in the discretion and prerogative of police that are before me. And which verify the process of the criminal law so that rights are not abused but observed to the prime. Information and warrants are what these are in law. Heed is paid to the dictate of the Constitution.
  6. It is not established by evidence as to who the political enemies are and on what date, time, they are alleged to have conspired to bring this criminal allegation through the police to get at him, the applicant in the way he alleges here. No specific evidence has been placed before me to say that there was a meeting with police with political leaders in Madang to get at the applicants/plaintiffs. For leaders of Madang to call for an investigation to determine where money allocated by law to Manam Restoration Authority is not a political witch hunt. It is a serious concern that the law must address and Police are mandated by the Constitution to carry out. Inuendo and supposition do not comprise the basis to derail a process by the Constitution bestowed upon the police.
  7. Constitutional provisions in their application run in harmony with one and the other. Section 155 (4), sections 197, and 198 are no different. Each provision empowers and in so doing does not create disharmony and disorder. And the application of each is clear from Avia Aihi v The State (No 1) [1981] PNGLR 81. Time within which to appeal had lapsed but giving effect to it would have denied substantial justice upon the prisoner. The discretion by this provision was used to give leave outside so as to ensure appeal was heard and justice accorded. Here the call of duty upon section 197 and 198 on the Commissioner of Police is heeded and will not be the basis for invoking section 155 (4). As that is not the spirit of the Constitution.
  8. The parties to the proceedings are named out in the instituting process by the originating documents of the writ of summons and the statement of Claim, including the interlocutory notice of motion filed. The lawyer on record Counsel David Dotaona is not one of the parties in the proceedings. He is counsel representing those who are named as the applicants/plaintiffs and he will be heard in that capacity not as to what will happen to him if he goes ahead with this application and proceeding. That is not the institution before this Court. It is improper for counsel to voice and urge without evidence specific institution or evidence. Counsel will remain independent to assist the court in the matter and not to divulge into the dispute in the arena. And it is clear from Thompson v Kalaut [2011] PGNC 31; N4265 (14 April 2011) that it is not personal battles that the Court is concerned with. That would amount to abuse of process.
  9. In this regard there is no material independently establishing that the lawyer William Akuani and the Magistrate both have been arrested for perverting the course of Justice. Likened to the applicant/plaintiffs there is no information let alone a warrant of arrest to depict this out. It is clear that without that evidence independently sourced and confirmed, the assertion of the applicant/plaintiff is self-serving. And will remain there not without.
  10. This is bearing in mind Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015) that there are procedural safeguards built into the criminal process to give full protection of the law to an accused persons and there is really no need for an accused person to Stay a criminal case using the civil jurisdiction of the National Court. Because criminal cases should only be stayed in the rarest of cases to be determined by the circumstances which are warranted by the evidence led in each case. There is nothing in the evidence that has been led to depict that this is a rare occasion by its facts and circumstances that accord be given to stay the criminal process instituted, Independent State of Papua New Guinea v Tamate [2021] PGSC 54; SC2132 (30 July 2021).
  11. The notice of motion is supported by the affidavit of Peter Charles Yama MP duly elected Governor of the Madang Province. He swears of the 03rd September 2021 that the second Plaintiffs are officers of the Madang Provincial Government, the National Department of Finance (the Treasury Office of Madang), and the Ramu Development Foundation Limited, that together with him are alleged to have conspired to defraud the Manam Resettlement Authority of K 6 million. He denies it outright and contends that they are Political witch hunt brought by his political enemies who are using Police to their convenience to smear his name and reputation.
  12. And in this regard the police have obtained a warrant of arrest for him on the charge of conspiracy to defraud under section 407 (1) (b) of the Criminal Code issued by the Ramu District Court of the 31st May 2021, annexure “PCY1,” and “PCY2” are similar for the second Plaintiffs. And the matter started when the ACP Divisional Commander based in Lae worked with certain Politicians. And he names the composition of the police MRA investigations team. He deposes that the first defendant the Commissioner of Police directed against the investigations. And the criminal prosecutions to be ceased, but it has not been heeded with ACP Peter Guinness. In this regard search warrant has been obtained to search the Madang Treasury office. Confidential documents were searched as a result of that warrant. Confiscation of documents relevant to the MRA Investigations were obtained regarding the disbursement of K6 million funds belonging to the Manam Resettlement Authority. The warrant was set aside upon application in court, but the documents obtained were not returned by Police. Further court proceedings have been initiated in the matter.
  13. The plaintiff deposes further, “Using the materials obtained in the first search the MRA Investigations Team then obtained warrants of arrest for the arrest of myself and the Second Plaintiffs. The Second Plaintiffs were arrested by the Police on or about 1st June 2021.
  14. I am very concerned that the Police obtained warrants of arrest against the Second Plaintiffs at the Ramu District Court when there is a District Court in Madang and when the subject matter concerns allegations arising in Madang and not Ramu. I am concerned that the arrest and detention of the Second Plaintiffs was harsh and oppressive and breached human rights. I am extremely concerned that the Police will also breach my human rights if they arrest me in the same manner as they arrested the Second Plaintiffs.
  15. I am advised that the second Plaintiffs human rights were abused and breached by Police in the manner set out below.” He deposes further that the second plaintiffs were detained 01st June 2021 at the Police Cells at Jomba Police Station and then secretly moved to Ramu Police Station without being informed for the reasons of their arrest and detention before being moved. Magistrate Fridolin Kambibei who made the order was also arrested including lawyer William Akuani both were charged with conspiracy to pervert the course of justice. And for these reasons he seeks interim protection of the law until the substantive issues are determined in Court.
  16. The affidavit attaches Warrant for Arrest of the applicant. It attaches committal proceedings in the matter against Joseph Kunda who was the Provincial administrator. Importantly the subject money is passed by parliament by an Act of Parliament which is Manam Resettlement Authority Act 2016, which Act states clearly that the Manam Resettlement Authority Funds are for its purposes only as mandated under that Act. Not for the Ramu Development Foundation which is a separate entity altogether and payment of the formers money there is no right in law. There is no evidence of any moneys that were spent by Ramu Development for the causes of Manam Resettlement Authority. And therefore, warranting Manam to repay Ramu. The attachments include information that have been laid by Police against Joseph Kunda, Helen Kanimba, Lomeng Bando, Joseph Aka, Richard Nagos. Reisino Peni, and Henry Kambuka.
  17. All these information charge each of the accused with the criminal offences of conspiracy to defraud pursuant to section 407 (1) (b) of the Criminal Code Act. Also, the Public Finance (Management)Act section 106 (2), section 92 (1) of the Criminal Code Act. They are backed by the warrants of arrests that have been obtained in each case also attached to the affidavit of the deponent/applicant. All information bears the date 01st June 2021 in each case. And the warrants of arrest obtained in each case are in giving heed to account in law the detention in custody of each of the accused including the applicant. All are now charged out on bail. Deprivation of liberty is by process of law not without. No doubt police heed the definition of conspiracy in State v Tanedo [1975] PNGLR 395 at 418. Hence the arrest of all set out above.
  18. The Criminal Process is a complete process on its own. It has started as here set out. A man is tried only once section 37 (8) Constitution. The challenge mounted by the applicant will have its day in court, Pato v Manjin [1999] PGSC 9; SC622 (30 April 1999) where the observations of the Supreme Court there are relevant and applicable here:

“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.”

  1. What is set out by this case is applicable given the facts of the present case by the applicant/plaintiff. It will not defeat because he will be accorded what is due in law to him. But the Criminal process instigated a Constitutional duty upon the Commissioner of Police by his men, including Assistant Commissioner of Police Peter Guinness, Madang Provincial Police Commander Mazuc Rubiang, Detective Senior Inspector Oscar Tobing, Detective Sergeant Dorothy Titus, First Constable Nathan Kerry, and Constable Jacko Sikive. They will therefore proceed as normal by the criminal code giving effect to the dictate of the Constitution section 197 and 198 without any stay as applied.
  2. Likened to Wartoto v State (supra), the criminal Justice system which comprises also the charging process and the collection of evidence is an integral part of that process. It will not be circumvented by applications that are likened to Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). Piecemeal applications not founded in law but intent on procrastinating proceedings must be stopped. The law gives rights that must be exercised in compliance, not against and here the process has started, and it is now in the hands of the Committal Court to see out that process to the National Court if warranted prima facie by the evidence.
  3. The criminal process has not been completed, it will not be circumvented by civil procedure in judicial review. The applicants/plaintiffs are also answerable to the Constitution in the process of criminal law and must be accorded that process lawfully not without. The material and the evidence here do not support that this is a peculiar case set out by its facts and circumstances that warrant a temporary Stay, let alone a permanent stay because Constitutional Provisions do not contradict and contravene one or the order. There must always be harmony and consistency. In the evidence relied here that is what is depicted out on the balance beyond preponderance, not otherwise as contended by the applicants/plaintiffs.
  4. Criminal process started by compliance of the law must be allowed to run its course, Baker, Re [1971-72] PNGLR 78. This is not the same situation seen out in Yabara v The State [1984] PNGLR 378 where money in an envelope was placed on the table of the magistrate hearing the committal proceedings. That is not the case here by the evidence filed and relied by the applicant/plaintiff. There is nothing for this Court to invoke in favour of the plaintiff and his application will suffer the same position that was taken by the Supreme Court in, Sent v Principal District Court Magistrate Cosmas Bidar [2017] PGSC 22; SC1582 (21 April 2017).
  5. The applicants/plaintiffs must demonstrate a number of very basic requirements for a Stay to be accorded. And these are stated in the following terms:

“To conclude that the test for a successful application for stay should be whether there are "special" or "exceptional circumstances" or that there is a "good reason" or that it is an "appropriate case" is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time.

We distil from these precedent cases the kinds of factors and circumstances that the Court will consider, amongst others, in the exercise of the discretion whether or not to grant a stay order. We start with the principal premise that the judgment creditor is entitled to the benefits of the judgment. The others factors include the following:

(i) Whether leave to appeal is required and whether it has been obtained;
(ii) Whether there has been any delay in making the application.
(iii) Possible hardship, inconvenience, or prejudice to either party.
(iv) The nature of the judgement sought to be stayed.
(v) The financial ability of the applicant.
(vi) Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
(vii) Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
(viii) The overall interest of justice.

(iv) Balance of convenience.

(ix) Whether damages would be sufficient remedy.” McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 (30 June 2000)
  1. The discussion set out above show inconsistency disharmony against the provisions of the Constitution which are prejudicial to the enforcement of the law and the criminal justice process. And therefore there is no arguable basis demonstrated for the Stay here. It is not an exceptional case set out. It is a criminal process that has started out and must be allowed to run its course. The subject K 6 million derives from an Act of Parliament not accounted through that process prima facie. The Legislature has enacted the Manam Resettlement Authority Act 2016 specifically for the application of that money for the People of Manam by that Authority established. It must see out the criminal process in compliance not against to completion. There is no apparent error of procedure or substance that needs immediate action by the Court in a stay to the criminal process here. Civil procedure will not again derail the criminal process seen by the highest law of the land the Constitution. There is compliance here by the members of the Royal Papua New Guinea Constabulary named, as opposed to noncompliance and even then, there are procedures by the criminal process that can see that out without the extreme of a stay. The cause to Stay is without merit and the notice of motion is refused with Costs forthwith.
  2. Costs are discretionary by the Court. This is an action that was unnecessary and not warranted in law and facts. It simply was frustration and procrastination of a Constitutional process of law, which entails the Criminal justice system that must in all relevance follow to the trial of that matter, where the position of the defendant, plaintiff can be examined in law to see where Justice lays in the matter. What has happened here is unnecessarily abused the process to bring the State into the defence of this matter. Time, money and logistics has been undertaken in the matter when the position in law is explicit and clear. Judicial time has been pulled into court unnecessarily when this matter is already by process of law leading. Justice has not been denied to the plaintiff. This action is therefore a case where the law was clear, and the applicant has brought to Court that action. He will bear the costs in so doing but on an indemnity basis, Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870 (29 October 2019).
  3. Judicial time must be taken by matters that are indeed by the law and the facts deserving of the time taken up. Where it is simply a clear case in law, it would in all reasonableness be a matter that should not occupy or dig into Judicial time. Parties should not be unnecessarily dragged into Court. Procrastination of matters must be stopped. This is a matter that can attain better results if it is allowed what all by law should endure not without. That complaint must see out its day in Court for the applicant the State. To grant will prejudice the rights of the State by its 8.5 million people against ten (10) individuals; the applicants. It would not par to accede to their application, because they will have all in the criminal trial proper if the matter is committed. But if it is discharged at committal they have the option to seek redress following. Accordingly, the costs will follow the event on an indemnity basis against the Plaintiffs for the defendants.
  4. Technicalities of the law are to serve justice not without. There is no excess of jurisdiction here so that Paraka v Peng [2016] PGSC 86; SC1622 (29 March 2016) is applicable.
  5. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Dotaona Lawyers: Lawyer for the Plaintiffs

Office of the Solicitor General: Lawyer for the Defendants

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