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Tobaining v M-Jovie Ltd [2022] PGNC 194; N9618 (9 May 2022)

N9618

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 79 OF 2022

BETWEEN:
EREMAN TOBAINING JNR
First Plaintiff

AND:
M-JOVIE LIMITED
Second Plaintiff

AND:
EMIL TAMMUR (in his capacity as the Chairman for the Kokopo District Development Authority), his employees, agents, servants and/ or associates
Defendants

Kokopo: Kassman, J
2022: 27^th, 29^th April and 9^th May

INTERIM INJUNCTION – application for interim injunction by first plaintiff to restrain defendant and its agents and servants from publishing through whatever means audit report of the Kokopo District Service Improvement Funds – Interim orders sought under Order 12 rule 1 NCR – plaintiff claims audit report if published would defame his reputation and infringe upon his constitutional rights to stand for public office – whether there is a serious question to be tried – First Plaintiff has not identified precisely his substantive cause of action other than claim his constitutional right to stand for public office – First Plaintiff does not have an arguable case for the interim orders he seeks – application for interim injunction is refused

Cases Cited:
Papua New Guinean Cases

Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman’s Union and Arbitration Tribunal (1982) N393
Craftworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572
Lowa v Akipe [1992] PNGLR 399
Soso Tomu v The Independent State of Papua New Guinea [1996] PNGLR 101

Overseas Cases

American Cyanamid Company v Ethicon Limited [1975]

Legislation cited:

Constitution s. 50
National Court Rules O 12 r 1
Public Finance Management Act

Counsel:

Epita Paisat, for the First and Second Plaintiffs
No appearance by or for the Defendant

DECISION

9^th May, 2022

1. KASSMAN J: The First Plaintiff Ereman ToBaining Jnr (“ToBaining”) was elected the Member of Parliament for Kokopo in the period 2012 to 2017. The Second Plaintiff M-Jovie Limited was incorporated on 9 September 2020 and ToBaining says he is the proprietor of that company. The Defendant Emil Tamur MP (“Tamur”) was elected the Member of Parliament for Kokopo in the period 2017 to 2022. The writs for the next National General Elections will be issued soon with nominations open for all seats in the National Parliament on 12 May 2022. ToBaining intends to stand once more for the Kokopo seat. I assume Tamur, the incumbent, will also stand for the Kokopo seat.
   
2. By the Original Summons filed on 20 April 2022, ToBaining sought a declaration that (1) he “is entitled, as a matter of constitutional right to stand for public office, such as candidate for the political seat of Kokopo Open without any mischievous, political and administrative interferences, intimidations and/or harassments from the Defendants, on the eve of the issue of writs for the 2022 National Elections.”
   
3. In the Originating Summons, ToBaining also sought orders that “The Audit Review of Kokopo District Services Improvement Programme (DSIP) – 2015 & 2016 and executed by the Defendant be suppressed from publication as it is defamatory and infringes upon constitutional right of the First Plaintiff to stand for the public office in the 2022 General Elections, free from any mischievous, political and administrative interferences, intimidations and/or harassments,” and that “The Defendant, his employees, agents, servants and/or associates be restrained from publishing the Audit Review of Kokopo District Services Improvement Programme (DSIP) (DSIP) – 2015 & 2016, in whatsoever communication form, including social media, the daily Newspaper Publication, by way of Emails, WhatsApp or any other forms of communication, until after the General Elections or until further Orders.”
   
4. By the Notice of Motion also filed on 20 April 2022, ToBaining sought interim orders that this Court dispense with the requirements for service of the court documents on Tamur and that Tamur and “his employees, agents, servants, and/or associates be restrained from publishing the Audit Review of Kokopo District Services Improvement Programme (DSIP) 2015 & 2016, in whatsoever communication form, including, social media, the daily Newspaper Publication, by way of Emails, WhatsApp or any other forms of communication, until after the General Elections or until further Orders.”
   
5. The first thing to note is that the interlocutory restraining order sought in the Notice of Motion is in exact terms as the final order sought in the Originating Summons. In Soso Tomu v The Independent State of Papua New Guinea [1996] PNGLR 101 Justice Sheehan held “2. An application for relief does not constitute a form of action and therefore cannot fall under the category of actions brought under section 57 of the Constitution” and that court was following the law as stated by the Supreme Court in Lowa v Akipe [1992] PNGLR 399.
   
6. At the urgent listing of ToBaining’s Notice of Motion at 9am on 27 April 2022, I refused his request to move his application in the absence of Tamur and I ordered ToBaining serve Tamur by 12 noon that same day and I also ordered service shall be effected on Tamur by personal delivery to Tamur’s office at the Bitapaka District Office, Bitapaka Road, Bitapaka LLG in the Kokopo District. ToBaining’s Notice of Motion was then adjourned for hearing on Friday, 29 April 202 at 9am. Mr Paisat filed an Affidavit stating he served Tamur as ordered by the court at 12:17pm on 27 April 2022.
   
7. At the hearing of his Notice of Motion on 27 April 2022, Mr Paisat appeared for ToBaining and his company. There was no appearance by or for Tamur. ToBaining relied on his Affidavit filed on 20 April 2022 and his Extract of Submissions filed on 20 April 2022.
   
8. ToBaining says he became Governor of the East New Britain Province in October 2012 when the elected Governor Leo Dion was elevated to Deputy Prime Minister. ToBaining says in the period 2012 to 2017, he initiated many projects within the province involving various local companies.
   
9. In April 2019, the Internal Audit Compliance Division of the Department of Finance issued the Audit Review of Kokopo District Services Improvement Program (DSIP) – 2015 & 2016 Report No. 08/2018 (“the Audit Report”) in which it was found ToBaining’s government awarded contracts to various companies including ToBaining’s company M-Jovie Limited, the Second Plaintiff in this proceeding. The Audit Report recommended ToBaining be referred for further investigation by the Police Fraud Squad and the Ombudsman Commission. A copy of the Audit Report was annexed to Tobaining’s Affidavit. One of the recommendations was that “ii. The Former Member for Kokopo Mr Ereman ToBaining be referred to Fraud Squad of Department of Police and Ombudsman Commission under the leadership code for having conflict of interest awarding contracts worth millions of Kina to his family company M-Jovie Limited.”
   
10. ToBaining says on 11 April 2022, he was informed that Tamur had recently “caused an Information Paper – 01/2022 titled “KOKOPO DISTRICT 2015 and 2016 DSIP AUDIT REVIEW INFORMATION PAPER” be considered by the Kokopo City Authority Board and that it be published for public consumption. Counsel for ToBaining says the Board has yet to sit and discuss the Audit Report. I repeat in full what ToBaining goes on to say:
    

“11. That to my knowledge as the former Governor, and upon receipt of advice from the Public servants, the Audit Report are administrative matters that are to be dealt with by the respective public servants in an administrative manner. I am merely a policy decision maker and after making the policy decision, it is the public servants to deal with the matters administratively.

12. I extremely concerned and distressed, that the Defendant has seen it fit to issue such a mischievous paper when the issue of writ for the 2022 General Elections is two (2) weeks away.

13. I wish to humbly refer this Honourable Court’s attention to the fact that the Internal Audit and Compliance Division issued its Audit Report in April 2019. See annexure “B”.

14. That when the Defendant received the Audit Report in 2019, he should have been pro-active and call further appropriate authorities like the Ombudsman Commission and the Police Fraud Squad to do further investigation to ascertain the truth or otherwise of the findings and recommendation of the Audit Review caried out by the Internal Audit and Compliance Division.

15. The timing of the information Paper 01/2022 leaves only one conclusion. That is that the Defendant and his associates are bent on smearing my name and reputation ahead of the 2022 General Election. This actions by the Defendant and his associates will affect my undeniable right to stand for public office free of any witch-hunt.

16. The majority of our people are not well versed with the mechanics of how the government systems work and the right to be innocence until proven guilty.

17. At that time, if the Defendants are allowed to put out this Information Paper for public consumption, a lot of the electorate will just presume that I have been investigated and found guilty.

18. I seek that this Honourable Court suppress the publicity of the Information Paper 01/2022 until after the General Elections or until further Orders.

19. The foregoing is all true and correct to the best of my knowledge and belief.”

11. ToBaining seeks his interim relief pursuant to Order 12 Rule 1 of the National Court Rules which provides “The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.”
    
12. The Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572 said “The principles applicable in interim injunctions are well settled in our jurisdiction. These principles are set out in Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman’s Union and Arbitration Tribunal (Unreported judgment of Kapi DCJ, N393 dated 11 October 1982) at pages 3-4. However, the House of Lords had the opportunity to reconsider this principle in the case of American Cyanamid Company v Ethicon Limited [1975] UKHL 1; [1975] 1 All ER 504). The House of Lords laid down the following principles in this case.
    
    1. Is the action not frivolous or vexatious? Is there a serious question to be tried? Is there a real prospect that the applicant will succeed in the claim for an injunction at the trial? All these questions laid down the same test. See Smith v Inner London Education Authority [1978] 1 All ER 411 at 419.
    2. The Court must then consider whether the balance of convenience lies in favour of granting or refusing interlocutory relief.
    3. As to the balance of convenience the court should first consider whether if the applicant succeeds, he would be adequately compensated by damages for the loss sustained between the application and the trial, in which case no interlocutory injunction should normally be granted.
    4. If damages would not provide an adequate remedy the Court should then consider whether if the applicant fails, the defendant would be adequately compensated under the applicant’s undertaking in damages, in which case there would be no reasons on this ground to refuse an interlocutory injunction.
    5. Then one goes on to consider all the matters relevant to the balance of convenience, an important factor in the balance should, other things been even, preserve the status quo; and
    6. When all other things are equal it may be proper to take into account in tipping the balance the relative strength of each party’s case as reviewed by the evidence before the Court hearing the interlocutory application.”
       

Is there a serious question to be tried?

13. There can be no dispute that, on the bare facts available in this proceeding, ToBaining, and Tamur likewise, have the right to stand for public office and that right is protected by section 50 of the Constitution which provides “(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who (a) is under sentence of death or imprisonment for a period of more than nine months; or (b) Has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, has the right, and shall be given a reasonable opportunity – (c) to take part in the conduct affairs, either directly or through freely chosen representatives; and (d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and (e) to hold public office and to exercise public functions. (2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”
    
14. In this proceeding, I understand ToBaining to be claiming the actions proposed by Tamur to publish the Audit Report by whatever means including action to table the Audit Report at the meeting of the Board of the Kokopo City Authority will constitute “mischievous, political and administrative interferences, intimidations and/or harassments” and any such publication will be defamatory and will infringe upon his constitutional right to stand for the public office in the 2022 General Elections. These are serious allegations but the basic facts need to be presented. All this court has is the bare allegation of ToBaining in his Affidavit, nothing more. There is no independent evidence as to these allegations. It may be the case the author of the Audit Report the Secretary Department of Finance has already taken steps to refer the Audit Report to the Police Fraud Squad or the Ombudsman Commission for further investigation. It may also be the case those offices have already taken steps towards implementation of recommendations including prosecution of people implicated of any wrongdoing. There is no evidence of Tobaining writing to Tamur stating his position and demanding Tamur desist from acting on and publishing the Audit Report and neither is there any evidence that Tamur has ignored ToBaining’s demands or indicates that he will proceed with steps which ToBaining apprehends.
    
15. During the hearing, I asked counsel for ToBaining to tell me who owns the Audit Report or who has immediate responsibility or custody of the Audit Report. That was aimed at understanding whether an order suppressing Tamur would have any utility in preventing the Audit Report from being addressed in some other forum or office. Mr Paisat suggested Tamur was the “owner” being the person who formally requested the audit.
    
16. It was also conceded the Audit Report was prepared by the Department of Finance and so the Secretary of the Department of Finance would still have authority to deal with it in accordance with lawful authority and function. Clearly a restraint against Tamur and his agents would prove futile if the Secretary Department of Finance has already taken steps to refer the Audit Report for further investigation. That would be lawful performance of functions and responsibilities under the Public Finance Management Act.
    
17. Most importantly, ToBaining does not challenge any aspect of the Audit Report and its recommendations and the process by which the Audit Report was requested, undertaken and presented. That would normally provide foundation to seek the interim orders to suppress publication. Mr Paisat just reiterated ToBaining merely wanted the interim order to supress publication now until after the elections. I am not satisfied Tobaining has identified precisely his substantive cause of action other than claim his constitutional right to stand for public office. Without that, I am not satisfied ToBaining has an arguable case for the interim orders he seeks.
    
18. Members of the public have the right to know about the use and abuse of public funds by elected and appointed leaders, especially at this time when they are called on to decide and vote their leaders. Furthermore, the voters in the Kokopo Electorate will also have reason to wonder why Tamur waited until the eve of the elections to deal with the Audit Report. Tamur failed to appear in court to explain himself despite being given the opportunity.
    
19. The claim for interim injunctive relief is refused. The Plaintiffs shall bear their own costs of the application. This matter is listed for directions as to the further conduct of this matter at 9am on 6 June 2022.
    
20. The Orders of the court are:
    
    1. The claim for interim injunctive relief in the Notice of Motion filed 20 April 2022 is refused.
       
    2. The Plaintiffs shall bear their own costs of the application.
       
    3. This matter is listed for directions as to the further conduct of this matter at 9am on 6 June 2022.
       

Decision accordingly:
____________________________________________________________________
Paisat Lawyers: Lawyers for the First and Second Plaintiffs
Lawyers for the Defendant: Nil