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Lafanama v Ombudsman Commission of PNG [2002] PNGLR 17 (8 April 2002)

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW UNDER ORDER 16, RULE 3 OF THE NATIONAL COURT RULES

AND:

IN THE MATTER BETWEEN PETI LAFANAMA, GOVERNOR, EASTERN HIGHLANDS PROVINCE
Applicant

AND:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Respondent

Waigani: Gavara-Nanu j

8 April 2002

JUDICIAL REVIEW – Application for leave to apply for judicial review – Organic Law on Duties and Responsibilities of Leadership, s.4 (2) (a) – A person is deemed to be a leader in the 12 months prior to becoming a person or leader under s. 26 of the Constitution pursuant to s. 4 (2) (a) of the Organic Law on Duties and Responsibilities of Leadership – Such person is thus subject to the Leadership Code for his conduct during that period.

Facts

The applicant sought leave to apply for judicial review of the decision by the respondent on 10 September, 2001 to refer him to the Public Prosecutor for prosecution under the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). The applicant had obtained a cheque for K10,000.00 from the national government in November 1998 and deposited the money into his bank account and used the money for his personal benefit. The respondent had written to the applicant seeking explanations on the use of the money. The applicant argued that he had received the money in the period after his election as the Regional Member for Eastern Highlands, was nullified by the Supreme Court on 28 August, 1998, and before his re-election in July 1999 and thus, he obtained the money when he was no longer a leader but a private citizen.

Held

1. The applicant received the money within the 12 months period preceding his re-election as the Regional Member for Eastern Highlands province and therefore he is required to disclose his dealings involving the K10,000.00 to the Ombudsman Commission under s 4(2) of the Organic Law on the Duties and Responsibilities of Leadership.

2. The purpose of s 4(2) of the Organic Law on the Duties and Responsibilities of Leadership is to ensure that the person who becomes a leader is honest and clean before actually taking office as a leader.

Papua New Guinea case cited

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

Counsel

J Nalawaku, for the applicant.
N Pitoi, for the respondent.

8 April 2002

Gavara-Nanu J. The applicant seeks leave of this court to apply for judicial review of the decision made by the Ombudsman Commission (hereinafter referred to as 'the Commission') on 10 September, 2001, to refer him to the Public Prosecutor for possible prosecution before a Leadership Tribunal, under s 27 of the Organic Law on Duties and Responsibilities of Leadership, (hereinafter referred to as 'the OLDRL').

The referral stemmed from K10,000.00 the applicant received from the Gaming Control Board in November 1998. The money was paid to the applicant in a cheque drawn from the National Government Account. The cheque was deposited by the applicant into his personal account with the Westpac Bank at its Waigani Branch.

The applicant admits receiving the money but says that, at the time the money was paid to him, he was no longer a leader because his first election as the Provincial Member for Eastern Highlands was declared null and void by the Supreme Court on 28 August 1998. He says he remained a private citizen until July 1999, when he was re-elected as the Provincial Member for Eastern Highlands following the by-election. So the applicant contends that from August 1998 to July 1999, he was not a leader. This period naturally covers November 1998, which is the month the money was paid to him.

On 10 May 2000, the Commission forwarded a standard annual statement form to the applicant to furnish informations required under s 4 of the OLDRL for the period 16 July 1998 to 15 July 1999. This period was the 12 months preceding his election as the Provincial Member for Eastern Highlands following the By-election.

On 16 November 2000, the Ombudsman Commission sent a letter to the applicant under the heading 'Your right to be heard on allegation of misconduct in office'- in the letter, the Commission made reference to its findings on the K10,000.00, the applicant received from the Gaming Control Board and the breaches the applicant may have committed under the relevant provisions of the OLDRL and s 27 of the Constitution.

In the second part of the letter, the applicant was invited to respond to the letter either in writing or orally as required under s 20(3) of the OLDRL. The applicant was advised that if he intended to respond in writing, he had to lodge his response within 21 days after receiving the letter, unless he was given an extension by the Commission to lodge his response outside the 21 days. The applicant was further advised that a request for extension of time was to be lodged with the Ombudsman Commission in writing within the 21 days.

But if he wanted to respond orally, the applicant was told that he was required to advise the Commission within 21 days after receiving the letter, so that the Commission could nominate a date and time in which his oral response could be received. The oral response could either be before or after the 21 days, after receiving the letter.

In the 2nd last paragraph of the Commission's letter, the applicant was advised that if he did not wish to exercise his right to be heard, then the Commission would proceed with its investigations and take whatever actions it considered necessary. And if the Commission was satisfied that there was a prima facie case against the applicant that he was guilty of misconduct in Office, then the Commission was obliged under s 29(1) of the Constitution and ss 17(d), 20(4) and 27(1) of the OLDRL to refer the matter to the Public Prosecutor for prosecution before a leadership tribunal.

On 6 December 2000, the applicant responded to the Commission's letter in a two page letter. In that letter, the applicant admitted receiving the K10,000.00 from the Gaming Control Board, but said that it was in November 1998, when he was no longer the Provincial Member for the Eastern Highlands. Therefore, he said he received the money when he was a private citizen.

On 29 December 2000, the applicant signed the declaration at page 12 of the annual statement declaring that the particulars he furnished for the period from 16 July 1998 to 15 July 1999, being the period of 12 months preceding his election were true, correct and complete in every detail as required by s 4 of the OLDRL. It can be taken from this, that the Annual Statement was not lodged with the Commission at least until 29 December, 2000. This was over 7 months after the Form was sent to the applicant by the Commission to lodge his Annual Statement for the period.

Part 6 of that Annual Statement refers to income and the paragraph reads:

"Details of all income derived from all sources by you, your spouse(s) and children under voting age either directly or indirectly in and outside Papua New Guinea during the period in the manner indicated below:-(my emphasis).

And in paragraph 6(g) which refers to 'Other Income' the applicant declared receiving the K10,000.00 from the Gaming Control Board. So the applicant did declare that during the period, which was from 16 July 1998 to 15 July 1999, he received that K10,000.00.

Section 4 of the OLDRL provides:-

"4. – STATEMENT OF INCOME, ETC

(1) A person to whom this Law applies shall –

(a) within three months after Independence Day; or

(b) within three months after becoming such a person

as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age –

(a) -

(b) -

(c) -

(d) -

(e) -

(f) -

(g) -

(h) -

(2) The period to which a statement under subsection (1) shall relate is-

(a) in the case of the first statement-the preceding 12 months and

(b) in any other case – the period since the last statement was given." (my emphasis).

Clearly, the annual statement which the Commission required the applicant to furnish and which he furnished on or about 29 December 2000, was for the preceding 12 months after he was elected to the Office of the Provincial Member for the Eastern Highlands after the By-election. Therefore, this was the applicant's first statement after his election on or about 13 July, 1999. The annual statement required by the Commission was pursuant to s 4(2)(a) of the OLDRL.

Therefore, although the applicant says that he was not holding a leadership position in November, 1998, it was a period within the 12 months preceding his election to the Office of the Provincial Member for Eastern Highlands, pursuant to s 4(2)(a) of the OLDRL. The applicant was therefore subject to the Leadership Code when be received the K10,000.00 from the Gaming Control Board in November 1998. Thus by virtue of s 4(2)(a) of the OLDRL, the applicant was deemed to be a leader when he received the K10,000.00 from the Gaming Control Board in November 1998.

It is not difficult to understand the thrust and the purpose of s 4(2)(a) of the OLDRL. It is there to ensure that the person who becomes a leader is honest and clean before actually taking Office as a leader.

In his statement in support of the originating summons, the applicant raises three grounds; first is that the Commission breached the principles of natural justice when referring him to the Public Prosecutor; secondly, he contends that the decision by the Commission to refer him to the Public Prosecutor was not a deliberate decision; and thirdly, the applicant contends that the Commission acted in excess of its jurisdiction when referring the applicant to the Public Prosecutor.

Looking at the particulars of all these three grounds, the applicant's principal argument is centered around his contention that he was a private citizen when he received K10,000.00 from the Gaming Control Board.

As to the first ground on the breach of natural justice, the applicant says the Commission did not conduct a thorough investigation, therefore it erred in fact and in law in exercising its decision to refer him to the Public Prosecutor. Section 20(3) of the OLDRL provides, for the person being investigated to be given an opportunity to be heard. He says he was denied a fair hearing.

I find that the letter by the Commission dated 16 November 2000, to the applicant fully complied with the requirements of s 20(3) of the OLDRL in that the applicant was given full opportunity to be heard, and was heard through his letter of reply dated 6 December 2000.

I therefore find that this ground has no merit.

As to the second ground, which states that the decision by the Commission was not a deliberate judgement as required by s 17 of the OLDRL, and that the decision to refer the applicant to the Public Prosecutor was made arbitrarily and capriciously, I find the evidence to be to the contrary, in that in the letter dated 16th November, 2000, to the Applicant, the Commission set out in full detail, its findings of how and when the applicant used the K 10,000.00.

It was money belonging to the tax payers drawn from the Government Account, which was paid to the applicant personally which he deposited in his personal bank account. How, when and where the money was spent were elaborated in the letter. I therefore find that the decision by the Commission to refer the applicant to the Public Prosecutor was by a deliberate judgement. I therefore find that this ground also has no merit.

As to the third and the final ground, the matter was obviously within the jurisdiction of the Commission to investigate and eventually refer to the Public Prosecutor. Again the applicant relied on the period he was not holding a leadership position, but as I have said, the period was within the 12 months preceding his election as the Provincial Member for Eastern Highlands, in July, 1999 as such the annual statement he had to lodge was the first statement after his election as a leader, as envisaged by s 4(2) (a) of the OLDRL. The Commission, therefore, had the jurisdiction to make a prima facie finding of guilty of misconduct in Office; which resulted in the applicant's referral to the Public Prosecutor. The third and the final ground therefore also has no merit.

The application for leave to apply for judicial review in the notice of motion is based on these three grounds which are in the statement in support of his originating summons. I have found that all three grounds lack merit. The upshot is, the applicant has failed to make out the principles set out in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122, at p.124 which would warrant a judicial review; in that the Commission acted within its powers to refer the applicant to the Public Prosecutor and there is no error of law committed by the Commission in making such referral.

The applicant was given every opportunity to be heard and was heard by the Commission before deciding to refer him to the Public Prosecutor. The referral was based on valid and proper reasons. It follows that there is no serious or arguable case to be determined if leave is granted.

There is one other matter which came to light during the submissions. That is, the applicant was a member of the Prime Minister's personal staff at the time he received the K10,000.00 from the Gaming Control Board. According to the annual statement lodged by the applicant for the period in question, at paragraph (a) of Part 6 under 'income', the applicant gave his employment as the Protocol Officer and his employer was the Prime Minister's Office with the net income of K1,500.00. The counsel for the respondent therefore submitted that the applicant was covered by s 26(f) of the Constitution and thus, was a leader and was therefore subject to the Leadership Code when he received the K10,000.00 from the Gaming Board.

The counsel for the applicant also made submissions on this issue.

I did not consider it necessary to address that issue in this judgement because the Commission did not address the issue and the applicant was investigated and referred to the Public Prosecutor by the Commission on the basis that he was the Provincial Member for Eastern Highlands, when he received the K10,000.00 from the Gaming Control Board.

The application is refused.

Costs to the respondent.
Lawyer for the applicant: Paraka Lawyers.
Lawyer for the respondent: Ombudsman Commission Legal Division.