SC1915
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 16 OF 2020

BETWEEN
PETER CHARLES YAMA
Appellant

AND
STEVEN YALAMO
First Respondent

AND
ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Respondent

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail J
2020: 15th & 16th February

SUPREME COURT – Stay order – Order sought to stay order to dismiss proceeding – Interim restraining order – Order sought to restrain police from inviting, intervening, arresting or attempting to arrest – Grounds of – Supreme Court Act – Sections 5(b)& 19 – Supreme Court Rules – Order 3, rule 2(b)

Cases Cited:

Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Eremas Wartoto v The State (2013) SC1298

Counsel:

Mr. B. Lomai, for Appellant
Mr. E. Alpha, for First and Second Respondents
No appearance, for Third Respondent

16th February, 2020

RULING

1.     	MAKAIL, J: The uncontested facts based on the affidavit of the appellant, his legal counsel Mr. Hyden Tamarua and the Commissioner of Police Mr. David Manning MBE, DPS, can be summarised as follows, following the 2017 General election, two election petitions were filed against the election of the appellant as Governor of Madang Province.  One by Mr. Jerry Singirok in EP No 69 of 2017 and the other by Mr. James Yali in EP No. 63 of 2017.  Mr. Yali’s election petition was dismissed by the National Court while another by Mr. Singirok was withdrawn.
2.    	In the election by Mr. Singirok, the allegations were bribery of two electoral officers Mr. Nixon Kavo and Mr. John Tumaing of K50.00 and K500.00 respectively by the appellant after polling had ended.  Soon after Mr. Singirok’s election petition was withdrawn, the two electoral officials were charged, tried and convicted by the Madang National Court on 03rd October 2018 on a charge of failure to report corrupt gratification under Section 97C(2) of the Criminal Code.  Each of them has appealed to the Supreme Court and the appeal is pending.

3.    	Meanwhile, the Madang Provincial Police Commander (PPC) and the first respondent invited the appellant to attend an interview at the Madang Police Station.  Prior to this, the appellant had lodged a complaint based on a ‘Legal & Financial Investigative Report’ conducted into the affairs of the Madang Provincial Government where Mr Yali was alleged to have stolen and misappropriated a sum of K1 million, monies belonging to the Madang Provincial Government.  Mr. Yali was twice invited to attend an interview with the Madang based police but has not.

4.   	On Monday 10th February 2020 the appellant met with the Commissioner of Police at the Police Headquarters in Konedobu and discussed the pending interview and pending court application to restrain the police from arresting him.  On the same day, an application for interim restraining order was heard by Kariko, J in proceeding OS No 18 of 2020 and the entire proceeding was dismissed for not disclosing a cause of action.  

5.    	Following the dismissal of the proceeding the appellant was served with an undated letter from the Commissioner of Police informing him to personally present himself at the Commissioner’s office by Friday 14th February 2020 at 10:30 am.  On Friday 14th February 2020 the appellant filed this appeal against the decision of the National Court and in the interim, sought an order to stay the decision of the National Court and secondly, an order to restrain the police from inviting, interviewing, arresting or attempting to arrest him pending the determination of the appeal.  The order for stay is sought pursuant to the powers of the Supreme Court under Section 19 of the Supreme Court Act.  Although not cited in the application document, the interim restraining order may be correctly granted by a single judge of the Supreme Court pursuant to Section 5(b) of the Supreme Court Act and Order 3, rule 2(b) of the Supreme Court Rules to “prevent prejudice to the claims of the parties”.

6.   	The appellant must show one or more of the factors set out in Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279 exists for an order for stay to be granted, one of them being an arguable case and the other, possible hardship, inconvenience or prejudice.  Another is the balance of convenience must favour the grant of stay.  The overall interest of justice is the overriding factor.  As to the interim restraining order, the appellant must show that there is a serious question to be tried, the balance of convenience favour the grant of the interim order and damages would not be an adequate remedy.	

7.   	Ideally, a transcript of the National Court proceeding would have been handy but none has been produced due to the urgency of the matter.  Nonetheless, in each case, central to the appellant’s argument is that he had a cause of action and the National Court proceeding should not have been dismissed.  It was based on Section 37 (Protection of the law) and Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution when he was being pursued by the first and second respondents on the allegations of bribery of two electoral officials which were the same allegations in the election petition case that were withdrawn.

8.  	As to the question of cause of action, one of the ambiguities in the originating summons is that, it was not put on behalf of the appellant that the appellant had brought proceedings in the National Court to enforce his human rights under Sections 37 and 57 of the Constitution.  In this type of case, the appropriate mode of proceeding would be a human rights application in the Human Rights Track of the National Court.  Yet what was put, though, was the appellant had commenced proceedings by originating summons and sought declaratory orders in relation to the conduct of the first and second respondents in pursuing him on the same bribery allegations that were previously withdrawn in the election petition case and sought to have them in the words of counsel, “declared as an abuse of process” because they infringed on the appellant’s right to full protection of the law under Section 37 of the Constitution.  This type of allegation is not only vague and ambiguous but also conflicting.

9.    	The other ambiguity is that, it had not been ably put to the primary judge and this Court that in pursuing the appellant for the same allegations of bribery, it constituted double jeopardy which is a legal term used in criminology to define a prosecution or punishment of a person for the same offence twice.  It had also not been put to the primary judge and this Court that the police were prohibited from pursuing the same allegations of bribery in the criminal investigation against the appellant which had been previously withdrawn in the election petition case. This is distinct from a criminal investigation and prosecution. Even without the benefit of the transcript of the National Court proceedings it is not difficult to see why the primary judge had no difficulty in reaching the conclusion that there was no cause of action.

10.   	It was argued on behalf of the appellant that the another ground of appeal was that the appellant was not given an opportunity to explain the cause of action to the primary judge because his Honour proceeded to rule that the proceeding did not disclose a cause of action and dismissed it in its entirety notwithstanding that the hearing was confined to the application for interim restraining order albeit a request for an adjournment due to the absence of the defendants/respondents.

11.   	However, it is basic and fundamental to a proceeding that there must be a cause of action for it to be maintained against the respondents.  From the deficiencies pointed out above, it is unclear what the cause of action was.  It was also not shown that the appellant was denied or prevented from responding to the allegations of bribery.  Even if he was not given a fair hearing before the primary judge the evidence before this Court show that he was not denied or prevented by the police from responding to the allegations.  On the contrary, the uncontested evidence is that, he was given the opportunity more than once to be heard by the police.  He attended once but that was on Monday 10th February 2020 where he met the Commissioner of Police to discuss the pending interview and pending application for interim orders. Not to be interviewed.  He also did not write to the first and second respondents to explain himself including the withdrawal of the same allegations of bribery in the election petition case.  These opportunities were available to him to avail of but he did not.

12.   	It was also not denied by the appellant that he had not been arrested or charged for the same bribery allegations or any other offence and so at this stage while the evidence is that the appellant has been investigated for the same bribery allegations, the crucial part of the investigation has not been completed.  This is the part where the appellant as the subject of the investigation is given the opportunity to be heard.  The investigation will be completed if he had and will attend the “interview” which the police had been requesting since the investigation.  The absence of an interview, arrest or charge sets this case apart from the Eremas Wartoto v. The State (2013) SC1298 where in a 2 to 1 majority decision, the Supreme Court granted a stay of the National Court proceeding pending the determination of the appeal which arose from two criminal charges of misappropriation of monies by the appellant.  A stay order was granted well after the appellant was arrested, charged and committed to stand trial at the National Court.

13.   	By the same token, it is rare for a Civil Court to stop a criminal investigation or proceeding from being completed unless the charge(s) are “incontestably bad” and the proceeding is “utterly misconceived”.  There are no charges laid against the appellant in this case and the primary judge and this Court is unable to ascertain if the charge(s) is “incontestably bad”.  And in the absence of the charge(s), it can also be found that the application proceeding in the National Court was premature.  Even on the preliminary assessment of the evidence in relation to the allegations of bribery, the withdrawal of the election petition where the same allegations of bribery were made, the assertion that the instigator of the allegations being Mr. Yali and that electoral officials having been charged and convicted of failure to report corrupt gratification and their appeals being pending does not make the case as a whole “incontestably bad” because it has not been shown that, by law the police were prohibited from investigating the same allegations against the appellant. These facts not demonstrate that the appellant has an arguable case.  Equally, in the case of an interim restraining order, there is no serious question to be tried.

14.  	It was argued for the appellant that he had been and will be greatly inconvenienced if a stay order and interim restraining order were not granted because police had and will obstruct or hinder his free access to and from the Parliament House for Parliament sessions on Friday 14thFebruary 2020 and next week.  He had been also subjected to threats and intimidation of being arrested.  The interim orders will stop the obstruction or hindrance until the determination of the appeal. There is no question that as a Member of Parliament and Governor of Madang Province, the concerns raised by the appellant are never to be dismissed lightly.  As a citizen and a Politician, the appellant has a right to full protection of the law.  However, his plea for Court’s intervention is also equally countered by the uncontested evidence of him not submitting to the number of requests by the police to attend an interview which would have eased the tension between him and the police.  A voluntary submission is priceless and can bring an end to the undesirable position the parties are in at the moment.  Either way, both sides had been inconvenienced by this long and ugly stand-off that must come to an end at some point.  But the inconvenience, threats and intimidations cannot be described as being permanent or irreparable and need the Court’s intervention.  

15.   	Apart from this, there is no evidence that the appellant has and will suffer permanent or irreparable loss if the orders sought were not granted.  If the appellant had will suffer harm and loss, he can be adequately compensated by an award of damages, if proven.  Otherwise, the interest of justice must dictate that the criminal investigation having commenced and about to be completed with the police offering the appellant the opportunity to be heard through an interview must be upheld and allowed to be completed.  

16.   	For the reasons going against the appellant, the application for stay and interim restraining order is refused with costs to the first and second respondents.

Ruling and orders accordingly.
________________________________________________________________Lomai &Lomai Attorneys:	Lawyers for Appellant
Police Legal Officer:		Lawyers for First & Second Respondents