N2096

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O.S. 272 of 2001

IN THE MATTER OF
A LEADERSHIP TRIBUNAL APPOINTED UNDER
PROVISIONS OF SECTION 27(7)(e) OF THE ORGANIC LAW
ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND IN THE MATTER OF CERTAIN CASES
OF ALLEGED MISCONDUCT IN OFFICE BY
HONOURABLE PETER IPU PEIPUL, MP

BETWEEN

PETER IPU PEIPUL
Plaintiff

AND

SHEEHAN J., MR. ORI KARAPO, AND
MR. IOVA GEITA (constituting the
Leadership Tribunal)
First Defendant

AND

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kandakasi J
2001: 16 & 25 May

JUDICIAL REVIEW – Decision of a leadership tribunal – Application for leave for judicial review of – Only issue for determination whether arguable case shown – Issues not raised at tribunal do not present arguable case – Failure to demonstrate arguable case on other grounds – Application refused.

WORDS & PHRASES – "personal gain" s. 27(2) of the Constitution – Fair and liberal meaning to be given so as to give effect to intention and or purpose of the legislation – means all manner of gain howsoever remote whether tangible or intangible

Cases Cited:
James Eki Mopio [1981] PNGLR 416.
John Joe Nemambo v. Peter Peipul and The State SC475
Kekedo v. Burnsphilip [1988-89] PNGLR 122
Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617
Ila Geno and Others v. The State [1993] PNGLR 22
Leto Darius v. Commissioner for Police and The State N2046
Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596
 Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370
Inakambi Singorom v. John Kalaut [1985] PNGLR 238
PLAR No. 1 of 1980 [1980] PNGLR 326
Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 125 
SCR No. 1 of 1978: Re Ombudsman Commission Investigations of the Public Prosecutor [1978] PNGLR 345

Counsel:
Mr. A. Jerewai for the Plaintiff
Mr. J. Kawi for the First and Third defendants
Mr. D. Cannings for the Third Defendant

25th May 2001

KANDAKASI, J: The Plaintiff is seeking leave of this court for a review of a decision of the first defendant (the tribunal), which found him guilty of certain misconduct in office as a leader and recommended his dismissal from office respectively on 10th and 19th of April 2001. The alleged misconducts centre on the appointment of the Plaintiff’s blood brother, Moses Tawa to the important Constitutional office of Chairman/member of the Public Services Commission.

Parties Contentions

The plaintiff advances six grounds, which he claims, present an arguable case warranting a grant of leave for judicial review. Firstly, he contends that there is an error of law on the face of the record. This is so, he says, because the tribunal did not properly interpret and apply the provisions of s. 27(1)(a), (b), (c), (d); 27(2); 27(5) and (6) of the Constitution and ss. 6(1), (2) and (3) and 15 of the Organic Law on Duties and Responsibilities of Leadership. He argues this denied him of the benefit of a finding that he did not personally gain from appointing his own blood brother.

Secondly, following on from the first ground, the Plaintiff contends that, because the tribunal did not properly interpret and apply the above provisions, it lacked or acted in excess of jurisdiction. 

His third ground is centred on the Wednesbury principle. He argues that, the tribunal erred in failing to take into account the fact that (1), he took steps to get his bothers appointment revoked which was done (2), proper procedures were then followed to reappoint his brother and (3), his letter of 29th December 1998 to the Ombudsman Commission. He also argues that, the tribunal erred in considering a letter dated 30th December 1998 from the Ombudsman to him as advice to him.

Fourthly, the Plaintiff argues that the tribunal was bias. He claims this on the basis that, the Chief Ombudsman was the former Chairman of the Department of Personal Management and he had a vested interest in the outcome of the matter. However, nothing is directly claimed against the tribunal. I therefore, struck out this ground as having no good basis by reason of which it was vexatious and frivolous.

The plaintiff’s, fifth ground concerns the standard of proof. This ground is based on the Supreme Court decision in James Eki Mopio [1981] PNGLR 416. He argues that the tribunal failed to apply the standard of proof set by that case and as such, the tribunal fell into error.

Finally, the Plaintiff claims that the decision to recommend his dismissal from office for his penalty was too severe. He claims that, his misconducts as found by the tribunal were not serious enough to warrant such a penalty. Therefore, he says the tribunal fell into error. 

The Defendants contend that, the issues in the first and second grounds were not raised before the tribunal. Counsel represented the plaintiff at the tribunal hearing and despite that, he failed to raise these issues. Accordingly, the tribunal could not and did not err in not giving any consideration to a matter that was not raised and properly before it for determination. Therefore, they argue that, these grounds are misconceived. In any case, they argue that, if the tribunal did embark upon an interpretation and application of the provisions in question, the Plaintiff could have still been caught and found guilty. 

On the third ground, the Defendant’s argue that, the tribunal made no error because it took into account all the factors that needed to be taken into account and did not take into account any irrelevant factor.

As for the fourth ground, the Defendants endorse the decision to have it struck out because the allegation of bias is not directed against the tribunal or any of its members. 

Regarding the fifth ground, the Defendants contend that the tribunal reminded itself at the very outset of the standard to be applied in the assessment of the evidence presented before it. They further argue that, the tribunal was however, satisfied as to the guilt of the Plaintiff on the much higher standard of proof beyond any reasonable doubt.

Finally, in relation to the severity of penalty, the Defendants argue that, the offences with which the plaintiff was charged and eventually found guilty of were serious. The tribunal took into account all the relevant factors before arriving at its decision to recommend a dismissal of the plaintiff. Accordingly, the tribunal did not err on this score or on any of the other grounds. Consequently, they argue that, there is no arguable case justifying a grant of leave for review.

Issues for determination

The parties agreed at the outset that, the only issue for determination by this Court is, whether the plaintiff has an arguable case to warrant a grant of leave for judicial review of the tribunal’s decision. To determine that issue, it will be necessary to consider whether, upon a quick perusal of the material constituting this application, a prima facie case of all or any of the errors alleged is disclosed. If that issue is answered in the affirmative for any or all of the grounds, it will led to an answer in the affirmative the only issue for determination.

The Background/Facts

The relevant facts are these. On about 7th August 2000, the Ombudsman Commission referred the Plaintiff to the Public Prosecutor on five (5) counts of alleged misconducts in office. The allegations arose from an appointment, revocation and reappointment of the Plaintiff’s own blood brother, Mr. Moses Tawa to the position of Chairman/member of the Public Services Commission. On 31st January 2001, the Public Prosecutor referred the plaintiff to the Chief Justice to appoint a tribunal to hear into the allegations and the tribunal was appointed. 

The tribunal conducted a full hearing into the allegations over several days from the 26th of February 2001, with a decision on verdict on the 10th and thereafter the penalty on the 19th of April 2001. The tribunal’s decision on the verdict consists of 33 pages. A copy of that is annexure "C" to the Plaintiff’s affidavit sworn on 11th May 2001. A copy of the decision on penalty is annexed to the plaintiff’s second affidavit, sworn on 15th May 2001, as annexure "A", consisting of 10 pages.

Learned counsel represented the Plaintiff at the tribunal hearing and or deliberations. There is no allegation of the principles of natural justice not being observed. I therefore, believe that, the tribunal heard evidence from relevant witnesses who were cross-examined by the Plaintiff. I also believe that, submissions were put to the tribunal on both the appropriate verdict and penalty. 

On 27th April 2001, these proceedings were issued. The matter came before me on motions on the 16th of May 2001. After having heard arguments, I reserved a ruling to today and this constitutes my ruling.

The Law

It is well settled law now that, the purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting it, with the court’s own decision. Instead, judicial review is concerned with the decision making process, and not the decision itself. The circumstances under which judicial review may be available are, where the decision making authority lacks, exceeds or abuses its power, commits an error of law, breaches the principles of natural justice and reaches a decision, which no reasonable tribunal could have reached. This position has been made clear in a large number of cases, decided by both this and the Supreme Court. A recent example of that, is the case John Joe Nemambo v. Peter Peipul and The State SC475, a decision of the Supreme Court, delivered on the 21st of December 1994, which I believe the Plaintiff is aware of. See also the case of Kekedo v. Burnsphilip [1988-89] PNGLR 122 per Kapi DCJ at 124.

It is also settled law that, the true nature of an application for leave for judicial review is set out in the judgment of Lord Diplock in Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617 at 644 in these words:

If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case [sic] in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.

Then speaking of the purpose of the leave requirements, Lord Diplock also said at page 643:

Its purpose is to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authority might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.

Lord Scarman added to that at page 749 of the same judgement as follows:

The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busy bodies, cranks, and other mischief-makers.

These passages have been quoted and adopted with approval in numerous cases both by our National and Supreme Courts. A recent example of that is the Supreme Court decision in, Ila Geno and Others v. The State [1993] PNGLR 22 at page 24.

The objective, as can be seen from the authorities such as those mentioned above, for the requirement for leave, is to provide the courts with the opportunity to screen and allow cases that merit judicial review. That is to safeguard against the courts being flooded with unmeritorious cases. This process ensures that, busy bodies with misguided or trivial complaints of administrative error do not waste the court’s time. It also helps to remove uncertainties in the public officers and authorities as to, whether they could safely proceed with an administrative action while judicial review of a decision is pending, even though misconceived. 

Broadly, the matters relevant for consideration in the exercise of the court’s discretion in determining an application for leave for judicial review, fall under a number of legal principles. These are locus standi, the decision to be reviewed has been made by a public body or authority, an arguable case on the merits, exhaustion of other remedies and making the application promptly. For a detail discussion of these see Leto Darius v. Commissioner for Police and The State N2046, a judgement of myself at page 6 to 9.

In the present case, as noted earlier, the parties agreed that, the only issue for determination is whether the Plaintiff has an arguable case. I considered that principle in, Leto Darius v. The Commissioner of Police and The State (supra) at page 8 in these terms:

To determine whether or not an applicant has an arguable case, regard must be had to what Lord Roskill said in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 953. His Lordship in summary said it would be an appropriate case for judicial review if a plaintiff can show any of the following against the decision-making authority:

1.	Want or excess of jurisdiction.
2.	Where there is an error of law on the face of the record.
3.	Failure to comply with the rules of natural justice.
4.	The Wednesbury principle - where a power is exercised in so unreasonable a manner. 

In our own jurisdiction Kapi DCJ stated that position in this way in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at 124:

The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. 

Having regard to and applying those principles, Woods J found that the decision-making authority complied with the relevant procedures and accorded the plaintiff with his rights according to the principles of natural justice. He therefore, found that the plaintiff failed to demonstrate an arguable case. Consequently, he dismissed the application in Application of Demas Gigimat [1992] PNGLR 122. On similar findings, Sheehan J. dismissed the plaintiff’s application in Application of Christopher Haiveta [(1998) N1783].

It is apparent from the above authorities that the question of whether or not an arguable case is shown involves the question of whether the application raises any fundamental or serious legal issue which warrants the Court’s consideration: See Ombudsman Commission of Papua New Guinea v. Honourable Justice Sakora and 2 Others as the Leadership Tribunal(1996 ) N1720.

In the present case, as noted at the beginning of this judgement, the plaintiff advances six grounds to argue that he has an arguable case. The first two grounds relate to an interpretation and application of ss.27(1),(a),(b),(c),(d); 27(2), 27(5)(b) of the Constitution and ss. 6(1), (2),(3) and 15 of the Organic Law on the Duties Responsibilities of Leadership. The Plaintiff argues that, the tribunal fell into error when it failed to interpret and apply these provisions. He argues that, if the tribunal did interpret and apply these provisions to his case, the tribunal could have found that he did not get any "personal gain", when he appointed his own brother to the position of Chairman/member of the Public Services Commission. This is because, he argues, he did not receive any monetary gain. Then under the second ground, the Plaintiff argues that, because of the failure to properly interpret and apply these provisions, the tribunal lacked the necessary jurisdiction. This argument is thus dependent on the first ground or argument.

The problem with these arguments is that, the parties do no dispute that, these issues were not raised before the tribunal. The tribunal was not given the opportunity to consider and made a decision on these issues. The Plaintiff has not drawn the Court’s attention to any authority which allows leave to be grant on a point not raised before a lower tribunal or authority, whose decision is sought to be reviewed. There is ample authority however, in the context of appeals that a party is precluded from raising on appeal, issues or points not raised or taken up in the lower court. For examples of authorities on that, see Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596 at 599 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at 374 to 375. In my view, with appropriate modifications this principle applies in the context of judicial review because, the decision-maker is required to take into account only relevant factors and arrive at a decision. This includes the relevant factual and legal issues. 

It is incumbent on a plaintiff to raise all the necessary issues. If he fails to do that, then by that conduct, he is telling the decision-maker that, there is no issue on matters not specifically raised by them. If for whatever reason, a plaintiff fails to raise an issue or point before the decision-maker and draw to the decision-maker’s attention, the relevant facts and issues, he is estopped by his conduct from raising them, for the purposes of getting a judicial review. The reason for this is simple. Judicial review is about fairness of procedure and a fair hearing. Therefore, before a plaintiff can be allowed to complain of unfairness to him, he must in fairness put all the issues to the decision-maker first before making such a complaint. 

In this case, the issues raised under the first and second grounds were not put to the tribunal. Hence, there was no need for the tribunal to concern itself with those issues because, they were not properly raised before it. If it did, the tribunal could have opened itself for a judicial review on the basis of it taking into account and concerning itself with irrelevant issues or matters not raised by the parties. Accordingly, in my view, these grounds do not present any arguable case.

There is a further problem with these grounds and arguments. The kind of interpretation the Plaintiff is arguing for is, in my view, very restrictive. It is indeed settled law now that, the Constitution and any Act of Parliament must be given a fair and liberal interpretation, so as to give effect to the purpose or objective of the legislation or provision in question. For examples of authorities on this, see Inakambi Singorom v. John Kalaut [1985] PNGLR 238 at 241, per Kidu CJ; PLAR No. 1 of 1980 [1980] PNGLR 326; Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 125 at 136; and SCR No. 1 of 1978: Re Ombudsman Commission Investigations of the Public Prosecutor [1978] PNGLR 345 at page 389, per Pritchard J.

In the present case, if the term "personal gain" as used in s. 27(2) of the Constitution was interpreted and applied in the way argued for by the Plaintiff, that term will be restricted to monetary or some tangible gain only. This would effectively free all leaders who use their position and power to employ or otherwise do favours for relatives and or wantoks, friends and associates. That would defeat the purpose and or aim of having the provisions in the Constitution and the relevant Organic Law. 

In my view, the intent and or purpose of having the provisions in question, was to prevent leaders from using their position and power for all manner of personal gain, howsoever remote that might be. These provisions were made to ensure that, there is no favouritism or "wantokism" and therefore corruption in public administration. They are there to ensure that, leaders conduct themselves in a fair and transparent manner and, in the matter of appointment to public offices, only the best on merits is appointed. I am of the view also, that, Parliament made no mistake in not putting any qualification to the phrase "personal gain". This was deliberately done to cover all situations, however slight it might be for the integrity of public offices and for good transparent governance. The aim was to protect the country from serious harm such as, the ones we are now facing because of years of wantokism or appointing close relatives, friends and associates to important public offices as opposed to, appointments on merit and in a more transparent manner. It is common knowledge now that, people are being appointed to important public offices not because of ones competence and integrity, but, because of their relationship with those in power. Such conduct is clearly against the law but, those in power are continuously acting contrary to such laws.

For these reasons, I do not accept the Plaintiff’s arguments that, the first two grounds present an arguable case for leave for judicial review of the tribunal’s decision to be granted. 

In relation to the application of the Winsbury Principle, as noted earlier, the plaintiff argues that, the tribunal failed to take into account three things. Firstly, that he had taken steps to have the appointment of his brother revoked which resulted in a revocation. Secondly, that proper procedures were then followed including, a disclosure of interest to the National Executive Council, which eventually decided to appoint the plaintiff’s brother, on 13th January 1999. Finally, a letter dated 29th December 1998 seeking the Ombudsman’s advice. He also argues that, the tribunal erred in treating its letter date 30th December 1998 to the Plaintiff as advice to him. 

A quick look at the decision in question shows that, the factors the Plaintiff claims were not taken into account were in fact taken into account. This is reflected in the decision of the tribunal from page 17 to 23, where it sets out the relevant facts from the time the Plaintiff was appointed to his own position through to the last of the correspondence exchanged between the Ombudsman and the Plaintiff. Then at page 20 to 21 of the decision, the first and second factors are specifically addressed. The third factor being the Plaintiff’s letter to the Ombudsman dated 29th December 1998, is covered at pages 24, 27, 31 and 32 of the decision. The Ombudsman’s letter of 30th of December 1998 to the Plaintiff, is covered at page 20 of the decision. The tribunal said the Ombudsman by that letter "sought specific information of the process of appointment by 5th January 1999 to enable a full and considered response" to the Plaintiffs letter of the 29th of December 1998. I can not see how this could be taken to mean the tribunal treated that letter has an advice. Counsel did not point to anywhere in the decision, where the tribunal had in fact, did what his client claims.

On the basis of the above reasons, I do not accept that the Plaintiff’s third ground discloses a prima facie error and therefore an arguable case. Instead, it clearly speaks against the claims. In any case, I find that the tribunal had all the relevant evidence, it gave consideration to them and arrived at a decision. That was after the Plaintiff exercised his right to cross-examine the witnesses and make submissions on them. I am satisfied that, the decision the tribunal arrived at was one reasonably open to it and could have been arrived at by a reasonable tribunal. I therefore, find this ground is without merit by way of a preliminary assessment of it.

These leaves only the fifth and six grounds to be looked at, as I have already struck out the fourth ground, for reasons already given. I start with the fifth ground, regarding the required standard of proof and the standard of proof that was actually used by the tribunal.

The Supreme Court in case of James Eki Mopio [1981] PNGLR 416, set the standard of proof to be used or applied by leadership tribunals in these terms, after considering a large number of authorities:

The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance or preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial.

The tribunal reminded itself of that standard at the outset of the decision at page 11, immediately after reciting the charges against the Plaintiff. After that, the tribunal assessed the evidence and was satisfied that, each of the charges were established beyond any reasonable doubt, which is an higher standard than the one set by the James Eki Mopio (supra) case. This is clearly stated at pages 24, 32 and 33 of the decision. Then for all of the charges, the tribunal concluded at page 33 of its decision on verdict "[w]e have thus found all the charges against the leader proved and proved beyond doubt".

At the hearing of this application, the Plaintiff did not demonstrate how the tribunal failed to apply the correct standard of proof. The Plaintiff did not, for instance, point out to a part or parts of the decision and show how the tribunal, in its assessment of the evidence, fell below the standard of proof, per the James Eki Mopio (supra) case, to find him guilty. He neither alleges, nor does he argue that, the evidence put before the tribunal, did not meet that standard and demonstrate how that could be the case. Simply put, the Plaintiff failed to establish at the least, an appearance of the standard to be applied not being applied. Instead, the decision clearly shows the opposite. Consequently, I find that, there is no arguable case under this ground. 

Finally, the sixth and final ground is an allegation that, the penalty of a recommendation for his dismissal from office is a severe one. During arguments, I asked counsel for the Plaintiff to describe what he considers to be a serious case in a situation like his client’s in the present case to warrant a dismissal so as to show that, the penalty was in fact severe. Counsel did not quickly come to the court’s assistance. However, after some persistence from the Court, counsel said a serious case could be one in which large sums of monetary benefits were involved as opposed to appointing a blood or close relative as in his client’s case. That obviously proceeds on the basis of his argument that, a leader would not be in breach of the relevant provisions of the Constitution and the Organic Law on Duties and Responsibilities of Leadership if there is no monetary or tangible gain for the leader concerned. I have already ruled that, the Plaintiff’s argument runs contrary to the intention and or purpose of the provisions of these laws. Consequently this argument must fail.

This argument also fails in my view because, the argument obviously ignores the fact that, the Plaintiff appointed a blood brother to an important Constitutional office that carries a good number of peaks and privileges. Though not directly, it is a gain to the Plaintiff because, there is a gain to his family and him in that, he has helped his brother who would assist him when he is in need and he has also raised his family’s profile.

There is a further reason why this ground fails to demonstrate an arguable case. The Plaintiff failed to show how the tribunal fell into error when it arrive at the conclusion that, the charges which were established against him were serious. For instance, he did not point out the factors the tribunal took into account that were irrelevant and the factors that were relevant but were not taken into account by the tribunal before arriving at that decision.

In my view, the plaintiff is in effect asking this court to review the decision on penalty as if there’s an appeal against the decision. He has forgotten the fact that judicial review is about procedure and the process of arriving at a decision as opposed to a review for the reviewing authority to substitute the decision with its own. A quick perusal of the decision on penalty shows that it is detailed evidence by the number of pages adding to 10. From page 3 of the decision, the tribunal discusses the alternative penalties and then takes into account a number of factors before arriving at the decision to recommend dismissal. This is what the tribunal said at pages 8 of its decision:

The tribunal is in fact wholly satisfied that the individual conducts do constitute a serious of wilful misconduct each warranting dismissal from office. The Constitutional and Organic Law provisions have been set in place to provide checks and balances to ensure fair and proper consideration of appropriate appointees to public office. Those provisions are designed to prevent wrong doing such as nepotism and wantokism. Thus when the leaders conduct taken step by step or the whole, plainly shows a deliberate flouting of the appointing procedures and leadership duties. In such circumstances in the Head of State making the appointment contrary to law (sic). The misconduct has resulted of a public officer holder (sic). The only recommendation for penalty must be dismissal.

The Plaintiff neither alleges, nor argues that, the tribunal wrongly arrived at that conclusion because, say for example, it took into account irrelevant factors or something like that. Hence I find this ground is also without any good basis and it fails to demonstration at least an arguable case for review.

For all of the reasons set out above, I am not satisfied that the Plaintiff has demonstrated an arguable case for judicial review. I therefore refuse the application for leave with costs against the Plaintiff.
________________________________________________________________________
Lawyers for the Plaintiff:			Jerewai Lawyers
Lawyers for the First and Third Defendant:	Solicitor General
Lawyers for the Second Defendant:		Mr. D. Cannings