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Popoitai v Genia [2023] PGNC 339; N10489 (12 September 2023)

N10489

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 77 OF 2023


BENNY POPOITAI
Plaintiff


V


ELIZABETH GENIA IN HER CAPACITY AS THE ACTING GOVERNOR-BANK OF PAPUA NEW GUINA
First Defendant


And
TAU VINI IN HIS CAPACITY AS BOARD SECRETARY-BANK OF PAPUA NEW GUINEA
Second Defendant


And
DAVID TOUA IN HIS CAPACITY AS THE CHAIRMAN OF THE BOARD OF DIRECTORS OF BANK OF PAPUA NEW GUINEA
Third Defendant


And
ULATO AVEI, RICHARD KUNA, JAMES GORE IN THEIR RESPECTIVE CAPACITIES AS MEMBERS OF THE BOARD OF DIRECTORS OF BANK OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Miviri J
2023: 08th & 12th September


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Application for Certiorari & Mandamus – Order 16 Rule 5 NCR – Breach of Procedure – Error of Law on Face of Record – Bad Faith Ill Will – Policy Not Law – Irrelevant Considerations – Balance Discharged –Judicial Review Granted – cost follow event.


Cases Cited:
PNG Power Ltd v Registrar of the National Court [2013] PGSC 65; SC1335
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122


Counsel:
N. K. Kopunye, for Plaintiff
D. Kaima, for Defendants


DECISION


12th September 2023

  1. MIVIRI, J: This is the ruling on the substantive Notice of Motion of the plaintiff filed the 02nd August 2023 pursuant to Order 16 Rule 5 of the National Court Rules, “the Rules,” seeking:
  2. The notice of motion is opposed by the defendants who have filed a counter notice of motion of the 11th August 2023 where they contend that:
  3. This notice of motion if successful will dismiss the Notice of motion of the plaintiff applicant. But if it is not successful then the substantive notice of motion of the plaintiff applicant will draw Judicial review, in particular the writs of certiorari and mandamus pleaded. Firstly, the terms 1, 2, 3, and 6 of the Orders of the Court made and entered on 28th July 2023 will not be set aside because there is no material that has been placed to set aside those orders. Orders of the Court cannot be set aside without the material in support warranting: PNG Power Ltd v Registrar of the National Court [2013] PGSC 65; SC1335 (7 August 2013). Even adjournments are not out of the hat but must be by proper materials filed to draw the motion to adjourn: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). It follows that the applicant defendants have not demonstrated, and this ground is without merit and fails.
  4. In respect of the remaining grounds of that notice of motion, I hold that compounded for the reasons that I now expound hereunder, I dismiss in entirety all these grounds set out above. I hold that the notice of motion of the defendants, particulars of which I have set out above as being without merit in law by the facts. And which facts I have stringently canvassed in the Judgement on Stay delivered on the 28th July 2023. Which in my view adequately cover all relevant and material consideration of law in the determination of this substantive notice of motion now moved by the applicant plaintiff. The determination of the Stay went into the intricate details of the evidence.
  5. This application draws on the affidavit dated the 26th July 2023 of Elizabeth Genia Acting Governor of the Bank of Papua New Guinea by the defendants. Who acknowledges that the plaintiff/applicant is employed under a contract as Director of FASU, Financial Analysis and Supervision Unit. And despite the language of section 62 of the Anti-Money Laundering and Counter Terrorist Financing Act 2015, the Director is an officer of the Bank of Papua New Guinea under the Central Banking Act 2000. As such the terms of the Employment Contract of the applicant/plaintiff to attend to his responsibilities in compliance with the Bank of Papua New Guinea’s Code of Conduct and its Employee Handbook. And which are both attached as annexures “EG2 & EG3” to that affidavit. That clauses 11 E and 11 G under part 16 of the Handbook provides that all officers and employees of the Bank of Papua New Guinea, upon reaching the age of 65 years must be advised of reaching the compulsory retirement age and retired in accordance with the terms of the Redundancy and Retrenchment Policy 2007, which is annexure “EG4” of that affidavit.
  6. That the applicant/plaintiff reached the compulsory retirement age of 65 years on the 11th January 2023 and was advised by the Bank’s Human Resources Division in late 2022 to prepare for his retirement in accordance with that policy. “EG5” is the letter of the 05th May 2023 written by the applicant/plaintiff to the First Defendant acknowledging that he indeed turned 65 years old on that date. But he goes onto state that at that time he was serving out his term as Acting Governor of the Bank. That under section 22 (c) and 21 (3) of the Central Banking Act the maximum age limit for the Governor and the Deputy Governor was 70 years old. And the staff minimum age restriction did not apply in his case as he was the Acting Governor at that time. And in his substantive position as Director of FASU he was subject to section 65 of the Anti-Money Laundering and Counter Terrorist Financing Act 2015. Which section dealt with the dismissal of director none of the grounds relied on were not applicable to the applicant/plaintiff as Director of FASU. Therefore, the removal intended had no legal basis and was really an abuse of power.
  7. The first defendant asserts, “On 16th February 2023, I applied clause 20 of the Bank’s Retrenchment and Redundancy Policy 2007 to retire you from your current employment as Director FASU based on (a) above.”
  8. Material in the terms of the affidavit sworn of the 14th July 2023, filed of the 15th July 2023 by the plaintiff/applicant is undisputed facts that he also sets out in the order 16 Rule 3 (2) Statement filed also of the 15th July 2023. It is firm he currently serves by contract as Director of FASU (Financial Analysis and Supervision Unit.) which is established under Part VI Division 1 Subdivision 1 of the Anti-Money Laundering & Terrorist Financing Act 2015 (AML&TFA 2015). Section 63 of that Act sets him up as director. And which appointment is by instrument by the Governor of the Bank of Papua New Guinea for a period of five (5) years expiring in 2024. In December 2021 whilst serving in that position he was appointed Acting Governor of the Bank of Papua New Guinea for an initial period of six months up to 22nd June 2022. He was appointed by the Treasurer Honourable Ian Ling- Stuckey under section 21 (1) (b) Amended Central Banking Act 2000 (CBA).
  9. Which appointment was recommended by the Board of the Bank of Papua New Guinea (Board) for extension for another term which was for three (3) months to 22nd September 2022. And in that month the Board met and passed a resolution recommending the plaintiff’s permanent appointment as Governor of the Bank of Papua New Guinea. Which was ignored by the Treasurer but extended the acting appointment for another three (3) months expiring on the 22nd January 2023. And again, in January 2023 the Board met and passed a resolution recommending the plaintiff’s permanent appointment as Governor of the Bank of PNG. The Treasurer ignored the Board’s recommendation and appointed Ms. Elizabeth Genia the First Defendant as the Acting Governor for 3 months until 22nd April 2023. She was not recommended for reappointment but the Treasurer without the recommendation of the Board, unilaterally extended her appointment for a further three (3) months expiring on the 22nd July 2023. And in February 2023 the plaintiff was served a notice by the First Defendant in her capacity as the Acting Governor advising him that She was using her powers under CBA and compulsorily retiring him due to his age officially crossing 65 years. To which the plaintiff replied copied to the Chief Ombudsman, Mr Richard Pagen, advising that her actions were vindictive in nature abuse of power and inconsistent with section 22 (1) (c) of the CBA 2000. In it the retirement age was 70 years for anyone at the position of Deputy Governor or Acting Governor or Governor.
  10. The plaintiff has been Deputy Governor for 15 years before assuming his contractual position as Director of FASU under which it depended on the expiration of his contract with FASU or he attains 70 years old, whichever was the earlier so that he retired pursuant. The Chief Ombudsman intervened in the matter in February 2023 serving a notice, annexure “BP-2” to the first Defendant to withdraw her letter of compulsory retirement on me and to reinstate me immediately as Director of FASU. In April 2023 again a notice of compulsory retirement was served the plaintiff citing a public announcement made by a certain Minister appointing me as a Director of the PNG Stock Exchange. And which was in breach of the Ombudsman Commission’s directives of February 2023. So, Plaintiff met in person with the first Defendant and responded to her notice citing her abuse of power and vindictive actions. In May 2023 annexure “BP-3” letter was served on me whilst I was overseas on FASU business matters instructing me to immediately vacate the residential premises I was occupying as it was BPNG property, and I was not entitled to the residence.” I replied by annexure “BP-04”. And on the 14th June 2023 the Ombudsman Commission issued a warning to the First Defendant regarding her continuous harassment of the plaintiff which was defying their directive notice of the 22nd February 2023. Which did not stop because annexure “BP-6” notice of compulsory retirement dated the 30th June 2023 was again served him.
  11. In summary, these facts do not come out of the application of section 65 “Dismissal of the Director” of the AML&TFA 2015. Let alone section 22 of the CBA. Both Acts of parliament not policies on retirement and retrenchment. And there is no Board resolution to account that the Board had passed such a resolution. No response has been received by the plaintiff on the letter, annexure “BP-07” replying to the notice of compulsory retirement. And there is no letter replying to the letter dated 12th July 2023 to the First Defendant to withdraw the compulsory retirement notice served on me by close of business Wednesday 12th July 2023. And the warning that legal action would be instituted has brought no response from her.
  12. Annexure “BP-1” letter dated 16th February 2023 under hand of the First Defendant subjected Compulsory Retirement Payout details prima facie that there are procedures missing why the plaintiff has been addressed in such manner. “This is to advise that you have been compulsorily retired by the Bank in accordance with the retirement Policy of the Bank effective as of Thursday 23rd February 2023. Your Retirement Benefits will be processed in accordance with the Bank’s Redundancy & Retrenchment Policy 2007 (Clause 20) based on your current Salary Grading 14, Step7. The relevant benefits are as follows.
  13. Annexure “BP-2” Direction under section 27 (4) of the Constitution-Investigations into allegations of misconduct in Office by Acting Governor of the Central Bank, letter dated 22nd February 2023 addressed to the Mrs Elizabeth Genia Acting Governor office of the Governor Bank of Papua New Guinea on the subject including Mr. David Toua Chairman Office of the Chairman Board of the Central Bank of Papua New Guinea. The letter is serious and draws out an independent assertion of a serious allegation against the office held by the incumbent First Defendant. And this is particularly so at the outset where the Ombudsman Commission says, “The Ombudsman Commission received information and is conducting investigations under the leadership Code (Constitution and the Organic Law on the Duties and Responsibilities of Leadership) relating to serious allegations against the conduct of the Acting Governor of Bank of Papua New Guinea, a person to whom the Leadership Code Applies.
  14. The Commission is quite concerned with the letter of 16th February 2023 to Mr. Benny Popoitai the Director of Financial Analysis and Supervision Unit (FASU) on “Compulsory Retirement” Firstly, without regard to the terms of his Contract and secondly, without concerns on the current preparations of the Papua New Guinea’s Mutual Evaluation Exercise commencing in 2023. The Ombudsman Commission has determined that it is necessary to issue the Direction pursuant to section 27 (4) of the Constitution in this particular case, for the purpose of ensuring the attainment of the objects of section 27 of the Constitution and in particular protecting your integrity, while it investigates the serious allegations.
  15. The Commission hereby directs pursuant to section 27 (4) of the Constitution that you: (i) take all steps necessary to ensure that you, or the office of the Governor of the Central Bank, does not terminate, suspend or otherwise remove Benny Popoitai, who has or is required by the Ombudsman Commission to furnish documents or other information or given evidence to it in connection with the investigation that is being conducted by the Ombudsman Commission concerning certain conduct of the Acting Governor; and
  16. Retain the services of Benny Popoitai as outlined in the contract made between Benny Popoitai and the Bank of Papua New Guinea on the same terms and conditions as those applicable; notwithstanding the expiration of any contract or agreement covering his employment under the employment agreement between Benny Popoitai and the Bank of Papua New Guinea (The State)
  17. Take all steps necessary to ensure that you, or the office of the Governor of the Central Bank, its agents and servants and the Chairman of the Board of the Central Bank, its agents and servants do not terminate, suspend or otherwise remove Benny Popoitai, who is Director of FASU on a three and half years Contract commencing on 21st July 2020 who is required to ensure that the preparations of the Papua New Guinea’s Mutual Evaluation Exercise commencing in 2023 to progress without any disruption; and respect the terms of the Contract between Benny Popoitai and the Bank of Papua New Guinea which commenced on 21st July 2020 for a period of three years and six months;” And warning is given of the serious consequences involved should the dictate of the Ombudsman Commission is not heeded. It is signed by both the chief Ombudsman and Ombudsman Kevin Kepore.
  18. This is bold and firm independent confirmation from the Constitutional office of the Ombudsman Commission of Papua New Guinea. Its effect is that it demonstrates ill will and bad faith in the issuing of the Letters of compulsory retirement set out above by the First Defendant. It is fundamental and material evidence which do not derail the plaintiff applicant in his position. He is 65 years old at 11th January 2023. But has been appointed Director of FASU for a period of 3 years and 6 months ending 19th January 2024. And his history of employment set out above do not see what the First Defendant was on about. His currency is by law and remains because that process has not been accorded for the first defendant to issue that compulsory notice of termination. And that is an appointment following from the establishment of FASU by section 61 of AML&TFA 2015. As such he is an officer of the Bank of Papua New Guinea by section 62 of that Act. Which is by written Instrument under hand of the Governor of the Bank of Papua New Guinea who consults the Commissioner of Police and the Departmental head responsible for National Justice Administration. That is not the evidence here leading to his ask by the First Defendant for his compulsory retirement on the basis of being 65 years old.
  19. In so appointing he has up to the 19th January 2024, to be in that Chair of Director FASU. And can be removed in accordance with reverse by this process by this Act. And the Compulsory retirement by age of 65 is not in the AML&TFA 2015 because his dismissal if he must be is, in accordance with section 65 of that Act. Which practically there is no evidence of any criminal offence known to the criminal laws of Papua New Guinea for which he has been found guilty by a competent Court of Jurisdiction that has been produced here warranting his dismissal as Director of FASU. And there is no evidence that he has breached the terms of his appointment to that position before me deposed to by the Defendants. There is no evidence deposed to by the defendants that he has acted in a manner grossly prejudicial to the performance of that position and his duties relating there. He has not been declared as insolvent or bankrupt, nor has he been found to be unsound within the meaning of any law relating to the protection of the person, property. Particularly the Criminal Code Act. This is really a case where it is overt and apparent that internal processes and procedure administratively by law have not been followed and there is no heed or no avail by the first defendant, let alone the other defendants: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). It is Judicial review discharged on the balance of all probabilities in favour of the plaintiff/applicant.
  20. Because there is no vacancy the applicant has not resigned pursuant to section 66 of that Act making the position vacant, and so another senior officer within the bank has been appointed by the same process set out above to that seat. There is really no evidence to this effect in the realm of section 66 of that Act deposed to by the defendants. In this regard the Commissioner of Police the current commissioner David Manning has given evidence on the file of this proceeding warranting that Director Benny Popoitai must retire, resign, or that he is no longer a suitable person to hold that chair. In similar terms supported by the current Secretary for Justice justifying warranting the actions of the First Defendant with all other defendants against. A very serious breach of law prescribing procedure. Hence the letter to compulsory retire the applicant has no foot in law to carry out what it professes.
  21. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Here the plaintiff applicant is engaged in law, the AML&TFA 2015, which does not warrant what the first defendant has affected here. What has happened here would follow, Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. Because it is overt and apparent that, what the first and all defendants have done is to defy procedure to come out with the decision. Which assertion is backed by independent corroboration by the Ombudsman Commission in its evidence set out above. It simply asserted its mandate under the Constitution not the tussle over that position of Governor or Deputy Governor or Acting Governor between the First Defendant or the applicant. By the dictate of its Constitutional duties, it does not meddle into administrative affairs in a Government Organization or department as here. When it issues directives, it has issued evidenced here it is not a light matter. Because section 27 (4) Direction under the Constitution and the Investigations into allegations of misconduct in office by the Acting Governor the First Defendant is not a light matter. They are in their role by the Constitution of our Country. And have not been accorded observance by the first Defendant let alone the other defendants. It is clearly against the dictate of the law where the highest law of the land sections 9, 10, 11, is the Constitution not heeded by the defendants.
  22. There is no reason depicted by evidence before me as to why the defendants have acted in this manner, except reliance on a Bank retirement and retrenchment policy which is in no way near in any way or form to the Constitution of this Country, the highest law of the land discharged by one of the Constitutional Offices, the Ombudsman Commission in his duties asserting very serious allegations against the First Defendant now investigated by that Commission. By itself the assertion by the service of the letters for compulsory retirement emanating from the first Defendant have bad faith written all over it. Coupled with

sections 65 of the AML&TFA, or for that matter section 22 (1) (c) of the Central Banking Act 2000, given that the applicant is only 65 years old as of 11th January 2023. He is not 70 years old by section 22 (1) (c), therefore the intent expressed by the letters to compulsorily retire do not have the force of law. And the consequence open given all above is they must for all intent and purpose be set aside forthwith. And the writ of certiorari is issued to uplift that decision here in this Court and to be set aside as having no effect upon the plaintiff applicant forthwith.


  1. The First defendant acting Governor of that Bank, accepts the fact that she has acted by Policy not by law in what she has set out to do what she did against the applicant. She falls short in the application of the law in the evidence she has attested to. And in my view do not overturn the evidence that the applicant has laid out. I prefer his evidence sworn of the 26th July 2023 filed the same. Also, of 14th July 2023 filed 15th July 2023. By which he has sat in that chair over the number of years that he has been in that Bank as a career officer without blemish to his account in that service. She in my view will do all to ensure that there is no competition to that position. I make this determination in the face of all I have set out above. Experienced Papua New Guinean men, women, of high professional, moral and standing, learned in their own right to lead an organization, or Department, of Statutory Offices, or Institutions must by that fact be allowed to lead. Infighting over position has become prevalent and rampant before the Courts all over the Country. It must stop and the goodness of the Country must be placed above all else. Here is evidence of the applicant as director of FASU required to ensure the preparations of the Papua New Guinea’s Mutual Evaluation Exercise commencing in 2023 to progress without disruption. And in the face of that to be told to retire compulsory by a policy not law, statute, or the Constitution the First Defendant clearly by ill will and bad faith rather than law to issue. Here the heart of the matter does not lean to the submissions made by the Defendants in any way or form.
  2. In my view the aggregate is that Judicial Review lies because the defendants have exceeded their powers. In so doing have breached natural justice. And by so doing abused their powers in particular the first defendant. No reasonable person in the office that she held would have made the decision she made leading to the demise of the applicant plaintiff. For these reasons certiorari is granted as pleaded to up lift the decision of the 1st to the 4th defendants made on the 15th July 2023 in compulsorily retiring the plaintiff into this Court and is quashed forthwith.
  3. And Mandamus lies directed to the First defendant and all other defendants to withdraw forthwith the notice of compulsory retirement conveyed to the Plaintiff in the letter dated the 30th June 2023 including the office of Director FASU.
  4. The formal orders of the court are:

Orders Accordingly.
__________________________________________________________________
Kopunye Lawyers : Lawyer for the Plaintiff/Applicant
Office of the Solicitor General : Lawyer for Fifth Defendants
StraServ Legal : Lawyer for the First to Fourth Defendants.
In house lawyers : Lawyer for Sixth Defendants

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