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Hitolo v Geno, Chief Ombudsman [2004] PGNC 87; N2700 (9 November 2004)

N2700

PAPUA NEW GUINEA

[IN HE NATIONAL COURT OF JUSTICE]

OS 571OF 2004

Between:

RAHO HITOLO
-Plaintiff-

And:

ILA GENO, CHIEF OMBUDSMAN,
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
-1st Defendant-

And:

PETER MASI, OMBUDSMAN
-2nd Defendant-

And:

OMBUDSMAN COMMISSION
OF PAPUA NEW GUINEA
-3rd Defendant-

And:

CHRONOX MANEK,
THE PUBLIC PROSECUTOR
4th Defendant-

And:

THE HON. JUSTICES KANDAKASI (CHAIRMAN),
DAVANI AND LENALIA as MEMBERS OF THE
CONSTITUTIONAL OFFICE-HOLDERS RIGHTS
TRIBUNAL, IN THE MATTER OF ALLEGATIONS
OF MISCONDUCT IN OFFICE AGAINST
RAHO HITLOLO
5th Defendant-

Waigani : Injia, DCJ
2004 : 9th November

JUDICIAL REVIEW – Leave application – Administrative decision – Ombudsman Commission’s decision to refer Member of Commission for misuse of Commission’s motor vehicle – Grounds – Conflict of interest and perceived bias – Failure to appoint independent investigators under S.19 of Organic Law on Duties and responsibilities of Leadership, to avoid conflict of interest or bias – No evidence to show both Commission and Leader considered option under s.19 – Grounds not arguable - Leave refused.

JUDICIAL REVIEW – Practice and procedure – Leave application – Undue delay – Appropriateness of decision-making body – Appropriateness of relief against correct body – Commission’s decision to refer leader to Public Prosecutor for prosecution – Public Prosecutor’s independent decision to refer leader to Leadership Tribunal appointed by Chief Justice – Leadership Tribunal appointed and investigations commenced – Inappropriate to challenge decision of Ombudsman Commission – Correct decision to challenge is Public Prosecutor’s decision – Two months delay albeit made within 4 months period under Order 16 rule 4(2) of the National Court Rules, amounted to undue delay in the circumstances – Leave refused.

Cases cited in the judgment:

Nilkare v Ombudsman Commission SC498 (1996).
Ombudsman Commission v Dennis Donohoe [1985] PNGLR 348.
Peter Yama v Ombudsman Commission SC748 (2004).
Sir Julius Chan v Makena Geno & Anor [1988] PNGLR 43.

Counsel:
L. Henao for the Applicant
M Pitoi for the Respondent

9th November 2004

INJIA, DCJ: This is an application for leave for judicial review made under Order 16 r 3 of the National Court Rules (NCR). The application is supported by the Applicant’s affidavit sworn on 11th October 2004.

The Attorney General was served the documents pursuant to NCR, O 16 r 3(3) but there was no appearance. Although an application for leave to apply for judicial review is made ex parte, I granted leave to the First, Second and Third Defendants (hereinafter referred to as the "Commission) to be heard as the subject matter relates to an internal matter involving a member of the Commission. The Third Respondent has filed a Notice of Appearance, Notice of Intention to Defend, an affidavit of the First Respondent and an affidavit of Mr Steven Mokis who is the Secretary to the Commission. The Commission contests the application.

The main relief to be sought if leave is granted as set out in the verified Statement filed pursuant to NCR, O16 r 3 and they are:

"(a) An order that the finding of a prima facie case by the First, Second and Third Defendants made on or about 24th June 2004 against the Plaintiff in respect of allegations of misconduct in office by the Plaintiff be quashed;

(b) An order that the referral of the Plaintiff by the First, Second and Third Defendants to the Fourth Defendant on 24th June 2004 be quashed;

(c) An order to restrain the Fifth Defendant as members of the Constitutional Office-Holders Rights Tribunal from continuing to hear and determine the allegations of misconduct in office against the Plaintiff;

(d) An order in the nature of mandamus to compel the First, Second and Third Defendants to appoint one or more Constitutional Office-Holders pursuant to Section 19 of the Organic Law on Duties and Responsibilities of Leadership to carry out an examination or conduct an investigation of the Plaintiff in respect of the use of the Third Defendant’s vehicle BBF-566 from the 6th to 26th February 2004."

The two proposed grounds of review to be sought at the full hearing if leave is granted, as set out in the verified Statement, are:

"(a) That the First and Second Defendants had conflicts of interest when they determined that there was a prima facie case against the Plaintiff for the following reasons:

(i) The First Defendant and the Third Defendant’s Secretary, Steven Mokis gave approval for the use of the vehicle BBF-566 by the Plaintiff.

(ii) The Second Defendant was privy to discussions with the Plaintiff and was aware of the approval for the use of the vehicle by the Plaintiff.

(iii) The First, Second, Third Defendants and Mr Mokis by their conduct or omission permitted the Plaintiff use of the vehicle during the period in question being 6th to the 26th February 2004 inclusive, in that neither specific terms of the use of the vehicle after the 6th February 2004, and by reasons thereof the Plaintiff was led to believe that it was an administrative decision hence, his use of the vehicle was in order.

(c) The First, Second and Third Defendants failed to exercise their discretion under Section 19 of the Organic Law on Duties and Responsibilities of Leaders or in the alternative if they did, the discretion was exercised unreasonably, by not having one or more constitutional officer holders appointed to carry out an independent examination or investigation and to compile a report on the results of its examination or investigation, when they were unable to or ought to have decided that they were unable to deal with the matter on their own."

The Applicant only challenges the Commission’s decision to refer him to the Public Prosecutor for prosecution. The Applicant does not challenge the decision of the Public Prosecutor (Fourth Defendant) to refer him to the Leadership Tribunal (appointed by the Chief Justice) and the Leadership Tribunal’s (Fifth Defendants) assumption of jurisdiction to deal with the matter referred to it by the Public Prosecutor. The Applicant also does not raise any other ground in relation to excess of jurisdiction against the Commission, apart from the grounds relating to breach of principles of natural justice under the principles enunciated in Ombudsman Commission v Dennis Donohoe [1985] PNGLR 348 and Nilkare v Ombudsman Commission SC498 (1996).

The short facts of the case are that the Applicant was an employee of the Commission between 1990 – 1998. He held the position of Director of the Commission’s Leadership Division and the Acting Secretary to the Commission. On 14th December 1998, he was appointed a Member of the Commission for a period of 6 years. His term will expire on 14th December 2004. That is some 35 days, from today.

On 18th March 2004, the Applicant was given what is called right to be heard notice by the Commission over allegations of misconduct in office in the use of the Commission’s motor vehicle registration number BBF-566. On 6th April 2004, the Applicant responded in writing. On 24th June, the Commission referred him to the Public Prosecutor under S.27(1) of the Organic Law on Duties and Responsibilities of Leadership (OLDRL). On 16th August 2004, the Public Prosecutor wrote to the Chief Justice requesting him to appoint a Leadership Tribunal, pursuant to S.29(1) of the Constitution and S.17(d), 20(4) and 27(1) of the OLDRL. The Public Prosecutor has kindly furnished to me, upon my request, a copy of his letter to the Chief Justice. A Tribunal comprising of the Fifth Defendants was constituted and it commenced its preliminary hearing in October. I am informed that the Statement of Reasons prepared by the Commission and charges of misconduct in office prepared by the Public Prosecutor were presented to the Tribunal on 4th October 2004.

On 4th October, 2004, the Applicant was suspended from office pursuant to S.29 of the OLDRL. On 12th October he filed these proceedings and applied, ex parte, for interim injunctive orders. I granted interim orders injuncting the Tribunal from proceeding with the matter until the leave application was determined.

The principles on grant of leave are settled. It is in the court’s discretion. In order for the discretion to be exercised in the Applicant’s favour, the Applicant must show he or she has sufficient interest or locus standi to bring the application, the application is brought without delay, other administrative or other statutory remedies for appeal or review for addressing have been exhausted or unavailable and the proposed grounds of review are arguable.

Full arguments were made by both counsel on these requirements for leave were made. Of these, the Applicant’s locus standi is not in issue. The Applicant is directly affected by the Commission’s decision to refer him.

On delay, under NCR, O 16 R 4(2,) the period prescribed for an application for certiorari is within 4 months from the date of the decision. There is no contest that the Applicant has filed this application within this period.

The Commission however contends that there was undue delay on the Applicant’s part when the Applicant’s application is seen in the light of other relevant and important events of Constitutional significance. Counsel for the Commission, Mr Pitoi submits that the Applicant had almost two months to challenge the referral, yet by his inaction, he allowed an independent Constitutional process to take place. That is, the Public Prosecutor made an independent decision that there were sufficient reasons to warrant an investigation by a Leadership Tribunal, and requested the Chief Justice to appoint a Leadership Tribunal. Consequently, the Chief Justice appointed the tribunal and it has begun its investigations. Further, it is detrimental to the good administration of the Leadership Code, for the Leadership Tribunal, to delay its investigations. He also submits because the grounds relied upon do not raise issues of excess of jurisdiction under S.217 (6) of the Constitution, these grounds are incompetent and therefore not arguable. To support these submissions, Mr Pitoi relies on the recent decision of the Supreme Court in Ombudsman Commission –v- Peter Yama SC748 (2004).

Mr Henao submits the Applicant has made this application well within the 4 months. The Applicant could not have possibly made the application earlier because he was not furnished a copy of the Statement of Reasons which he required to make this application. When he w was given a copy of it on 4th October 2004 when the Tribunal convened, he filed this application. He also submits the Public Prosecutor’s decision is tainted by the decision of the Commission. He further submits the proposed grounds of review raise arguable issues of law which the tribunal is not be empowered to decide and these should be determined by this Court in a full hearing.

Mr Pitoi submits Leadership Tribunals have in the past dealt with matters of law and statutory interpretations and the matters raised in the proposed grounds could equally be made the Tribunal.

On exhausting other remedies, Mr Henao submits there is no other appeal or review procedure in the OLDRL for an aggrieved person to seek a review of the Commission’s decision, except to come to this Court. Mr Pitoi submits the Applicant has the option of raising same arguments before the Leadership Tribunal.

In relation to the arguable nature of the grounds, Mr Henao submits the two grounds are arguable. The Commission is required by law to observe principle of natural justice which includes bias. Section 19 of the OLDRL provides a way out for the Commission to appoint an independent investigating authority comprising of Constitutional Office-Holders, to avoid a conflict of interest situation or where there is likelihood of bias. He submits the Investigating Authority so appointed has jurisdiction to conduct its own independent investigation and to refer the matter directly to the Public Prosecutor for prosecution, as decided by the Supreme Court in Sir Julius Chan v Makena Geno & Anor [1988] PNGLR 43. He submits there is a duty on the Commission to consider and apply S.19 but there is no evidence to show that the Commission did this.

Mr Pitoi submits the Commission did consider s.19 and it will produce evidence at the full hearing of the substantive application, to prove this. He refers me to paragraphs 14 – 18 of the statement of Reasons which shows that Commission considered s.19. Paragraphs 14 – 15 are more relevant and they state:

"14. Before taking that action, the Commission fully considered the question of whether it was a valid course of action in accordance with the Constitution and the Organic Law on the Ombudsman Commission. That is, whether the Chief Ombudsman and an Ombudsman can decide to investigate the conduct of a fellow member of the Commission for alleged breaches of the Leadership Code.

"15. Regard was had to Sections 14(2) and (3) of the Organic Law on the Ombudsman Commission which provide as follows:

(2) That for the purpose of conducting an inquiry under this Law, the quorum at a meeting of the Commission is two.

(3) All matters before a meeting of the Commission shall be decided in accordance with a majority of votes."

Mr Pitoi also submits the Commission denies the claims made by the Applicant of permission given by the Commission to use the vehicle and other facts asserted by him and it will also produce evidence to prove this.

In my view, as to the arguable nature of the grounds of review, the two grounds are related because they raise the same issue. They can be dealt with together. They involve questions on alleged breach of principles of natural justice, namely conflict of interest or perceived bias of the Commission, in investigating one of its own members in relation to internal arrangements for administering the leader’s personal contractual entitlements, by the Commission. In such cases the Commission must adhere to the principles of natural justice. It must handle the subject matter with care to avoid any suggestion or reasonable apprehension of bias resulting from a conflict of interest situation. Section 19 of the OLDRL provides an option or a way out for the Commission in this kind of situation.

OLDRL S.19 provides:

"Appointment of investigating authorities.

(a) The Ombudsman Commission may, where it is itself unable for any reason to conduct an examination or investigation referred to in Section 17, appoint one or more constitutional office-holders to carry out the examination or conduct the investigation and to report to it on the results of the examination or investigation.

(b) An examining or investigating authority appointed under Subsection (1) has, for the purposes of carrying out any examination or investigation in respect of which it is appointed, all the powers of the Commission necessary to enable it to carry out the examination or conduct the investigation including in the case of an investigation the powers referred to in Section 20, 21, and 22."

The option in S.19 is not without precedent. In Sir Julius Chan v Geno & Ors (supra), the Applicant was alleged to have committed breach of the Leadership Code when he bought shares in Placer Pacific Ltd. The Chief Ombudsman and another member of the Commission also bought shares in the company. Because of the conflict of interest of two of the members of the Commission on the subject matter under investigation, the Commission invoked S.19 and appointed the Respondents. The Respondents completed its investigations and referred the leader, directly, to the Public Prosecutor for prosecution. The Court held that an Investigation Authority had the power to conduct independent investigations and refer the Leader investigated, directly, to the Public Prosecutor for prosecution.

In the present case, the facts show that the Commission did not invoke S.19. There is also no evidence from the Commission’s Statement of Reasons to show that the Commission addressed its mind to S.19. The paragraphs 14 – 15 of the Statement of Reasons relied upon by Mr Pitoi, on the face of it, clearly shows the Commission was referring to the quorum for meeting of the Commission in terms of two of the Commission’s members deciding to investigate the third member under the Organic Law on the Ombudsman Commission.

The discharge of the duty under S.19 is not however entirely dependent on an aggrieved person requesting the Commission to perform that duty. The Commission must, as a matter of duty, consider S.19 in a case in which there is a likelihood of or potential for conflict of interest situation arising. Nevertheless, the onus is first on the person affected to request invoke S.19 and request the Commission to make a decision. The request should be made at the earliest possible opportunity, say as soon as practicable after the person receives information about the investigation. If the person aggrieved has not done so, then it may not be open for that person to raise it before the Court in a judicial review because the occasion for the performance of that duty has not arisen and no decision has been made on it, by the Commission, to give rise to any grievance.

There are three members of the Commission. In effect two members of the Commission, the Chief Ombudsman and the other Ombudsman, have decided to refer the third member of the Commissioner to the Public Prosecutor for prosecution. Section 19 is an option all three members should be or ought to have been aware of and the Applicant should have raised them at the earliest opportunity. As I said during argument, there is no specific reference in the Statement of Reasons, to S.19 from which I can find that the Commission did consider that option. Section 19 is a specific provision which imposes a duty on the Commission to invoke and there must be specific evidence of this duty being discharged. It may be that both parties may produce evidence at a full hearing to show S.19 was considered. But for purposes of this application they should be pleaded in the verified statement or evidence of it in the Statement of Reasons to demonstrate he has an arguable case which should proceed to a full evidentiary hearing. In the circumstances, I am not persuaded that there is any proper basis for perception of bias or conflict of interest or bias occurring, in fact, in the decision-making process on the part of the Commission, which the Court is being asked to review. For this reason, I do not consider these two grounds are arguable.

On the question of delay, this can be considered together with the correctness of the relief sought as against the correctness of the decision-making authority. The basis for this approach is NCR, O 16 r 4(2) which provides:

"Delay in applying for relief (UK 53/4)

"(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a) leave for the making of the application; or
(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceedings."

Earlier in Nilakare v Ombudsman Commission, SC 498 (1996), the Supreme Court considered the importance of time. In my judgment, I said:

"Under Order 16 r 4(1), the notion of undue delay must be considered together with the issue of whether the granting of the relief would be detrimental to good administration. Each case must depend on its own circumstances. In the case of an elected leader, it is of vital importance that the judicial review proceeding be commenced promptly after the leader is notified of the Commission’s intention to refer under OLDR, S.20(2) & (4). It is in the public interest that once a referral is made, the prosecution of an elected leader, if the Public Prosecutor so decides, must occur promptly. Elected leaders of the National Parliament have a limited term of five (5) years in office. Ministers of Government may have a shorter term in office as Ministers because they hold office at the pleasure of the Prime Minister of the day. No time should be wasted or soaked up by a leader or his lawyer or agent in advancing futile representations to the Commission after it has decided to refer. I say futile because the Commission in its deliberate judgment would have already formed an opinion as to a prima facie case of misconduct and it is unlikely that it will change its mind. And once it has referred the matter to the Public Prosecutor, it ceases of jurisdiction. The matter then becomes a prosecution matter. Again, a person referred to the Public Prosecutor should not make futile representations to the Public Prosecutor. The Public Prosecutor is not subject to external control or direction by any person in the exercise of his prosecutorial discretion: Constitution, S.176(2). It is contrary to the principles of good administration for a leader to delay the prosecution of his case by making futile representation to the Commission and the Public Prosecutor in the circumstances knowing that he has no legitimate expectation of being heard by the Commission or the Public Prosecutor."

Although these principles relate to elected leaders, they equally, with appropriate modification, apply to leaders appointed for a fix term.

Recently, a similar approach was adopted by the Supreme Court in Ombudsman Commission v Peter Yama SC747 (2004). In that case, the leader sought judicial review of his referral made by the Commission some 6 years earlier. The Public Prosecutor did not decide on the referral until the leader assumed elective office some 6 years later. A Leadership Tribunal was appointed by the Chief Justice upon the request of the Public Prosecutor. The leader sought a review of the Commission’s decision and not the Public Prosecutor’s decision. The National Court granted leave to apply for judicial review under O 16 r 3 and then proceeded to hear and determine the substantive application for review. The Court granted the review and quashed the Commission’s decision and injuncted the Tribunal from proceeding with the matter. The Commission appealed against the decision to grant the substantive application. The Supreme Court ruled that there was undue delay. The Supreme Court also said the decision of the Public Prosecutor made under S.29(1) and S.177(1)(b) of the Constitution and OLDRL S.27(2) was an independent decision, which superseded the decision of the Commission. The proper decision to challenge on review was that of the Public Prosecutor and not the Ombudsman Commission. Therefore, the application for judicial review of the Commission’s decision was misconceived. In my view, this decision is binding on this Court.

In Yama’s case, the Court adopted a passage from the learned authors of Review of Administrative Action, Law Book Company, 1987 at p.22 which was adopted by the Supreme Court in Yama’s case:

"The right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy..." (Review of Administrative Action, Law Book Company 1987, at p.22, adopted in John Mua Nilkare v The Ombudsman Commission, N1344 (1995)).

This passage accurately describes the nature of judicial review. It is particularly relevant in cases where a Statute or Constitutional Law gives a public authority a final power to make a decision on a subject matter; whether judicial, quasi-judicial, or purely administrative; and at the same time guarantees the authority independence in its decision-making process. The present case is a good example. The Commission’s function is primarily investigative whereas the Public Prosecutor’s decision is purely prosecutorial function. They are two distinct Constitutional offices with distinct functions and independent of each other. Whilst it is true that they both deal with the same subject matter covered in the allegations of misconduct in office, their decision-making process and the decision itself, are different. Likewise, the decision-making process of the Leadership Tribunal is distinct from the prosecution function of the Public Prosecutor who prosecutes the matter before the Tribunal. These principles were adequately spelt out in Yama’s case. I should add that any role the Commission may play a part before the Tribunal is as a witness. The only exception is if the Commission is prosecuting the Leader before a Leadership Tribunal in a case where the Public Prosecutor fails to refer or properly refer a leader referred to him, by the Commission: Constitution, S.29(2); OLDRL S.17(3). In such cases, the Commission may play a prosecution role as well as a witness role.

Mr Henao submits that the facts of Yama’s case and this case are distinguishable in that the Applicant has come to this Court within the 4 months of his referral whereas in Yama’s case, it was 6 years.

In my view, the present application falls squarely within the parameters of the principles enunciated in Yama’s case in terms of the correct decision to be challenged on review and delay. I have already said that the Public Prosecutor’s decision supersedes the decision of the Commission. I have perused the letter written to the Chief Justice by the Public Prosecutor and it is a detailed letter, showing the Public Prosecutor exercised his discretion independently and in a substantive manner as required of him by Constitution, S.29(1) & S177(1)(b) and the OLDRL, S.27(1), in accordance with the principles laid down by the Supreme Court in Yama’s case. Therefore, I find that the application is misconceived on this ground alone and I would dismiss it.

Alternatively, in my view, the circumstances of the present case show that time was of critical importance. Unfortunately, both parties did not fully address me, either by design or inadvertence, on the little time remaining on the Applicant’s term of appointment and the grave practical difficulties this imposes on all interested parties including this Court. I find that in the circumstances of this case, the 2 months delay, from the date of the Commission’s referral to the time when the Public Prosecutor decided on the referral, there was undue delay. At the time the Applicant was referred, there was only 7 months of his 6 years term remaining. He allowed about 2 months of it to pass by before the Public Prosecutor’s independent decision was made. By this time, he would have had sufficient information from the exchange of correspondences between him and the Commission, on the nature of the case against him, to enable him to mount a Court challenge and not wait for the Statement of Reasons to be furnished to him. He then waited for another almost 2 months after the Public Prosecutor’s decision. In this time, Chief Justice acted on the Public Prosecutor’s request and a Tribunal was appointed and started its investigations. It is now only 35 days away when his term expires. In my opinion, there isn’t enough time to even complete a full judicial review hearing if leave were granted. If leave were granted, the matter would proceed to a full hearing. But first necessary application would be filed and notice of the hearing would take time. Order 16 r 5(4) gives the Applicant 21 days to file an application for review. Order 16 r 5(4) requires 14 days notice of the hearing to the Respondents. Then the actual hearing would take some time. After the hearing is completed, time would have to be allowed for delivery of the Court’s judgment. In the circumstances, I have serious doubts about whether this application will be heard and determined before 14 December, when the Applicant’s appointment term expires. And even then, if judgment was granted in the Applicant’s favour, it will be too late because his term will have expired already. The Court has no jurisdiction to extend his term.

If the Applicant were successful in obtaining leave and also successful in the substantive application, the Applicant seeks an order of certiorari quashing the decision of the Commission and a permanent injunction against the Fifth Defendant from dealing with the matter. That means he would continue to perform his duties. The Applicant then seeks an order in the nature of mandamus to compel the Commission to appoint an independent investigation authority under s.19 of the OLDRL. In my view, even if the Commission were to make that decision, there would be little or no time left for the investigation authority to conclude its investigations, before the Applicant’s term expires. Even if the Investigating authority concluded its investigation and referred the matter to the Public Prosecutor, there would be no time left for the Public Prosecutor to make its decision.

In my view, the Applicant’s delay in not challenging the Commission’s decision in the two months he had, has placed himself, this Court and the Leadership Tribunal in a difficult position, with time. Everyone is now racing to get their respective jobs or cases determined within short time. This is practically difficult.

In my view, even though the application is made within the 4 months prescribed by O 16 r 4(2), the delay in that sense is undue delay. It is in his own interest that the matter proceed before the Tribunal without further delay so that the allegations are investigated and determined before his terms expires. It will not substantially prejudice his rights if leave was refused and the matter allowed to proceed before the Tribunal because it is open for him to raise the same matters before the Tribunal. It is open for him and the Commission to produce evidence on OLDRL, S.19 before the Tribunal and get its determination on the issue. I accept that the grounds of review do raise points of law, but matters of law have also been argued before the Tribunal and the Tribunal has interpreted and applied Constitutional and other Statutory provisions. It is therefore in his interest and the interest of the Leadership Code that the tribunal should determine the matter before his term expires.

In my opinion, although the Applicant has sufficient interest in the matter the subject of this application, he has acted against the wrong decision-making body, too late. He cannot go back and challenge the decision of the Commission after the Public Prosecutor has already decided to refer him to the Leadership Tribunal for prosecution and the Tribunal has already been appointed and it commenced its investigations.

Having reached this conclusion, it is not necessary to determine the Commission’s argument on S.217(6) of the Constitution.

For these reasons, I refuse to grant leave. I discharge the interim injunctive orders I granted on 4th October 2004. In view of the little time left before the Plaintiff’s term expires, I recommend to the Leadership Tribunal, the 5th Defendant, to proceed with its investigations without delay.

As leave application is made ex parte, I make no order as to costs.
________________________________________________________________
Lawyer for the Applicant : Henao & Co. Lawyers
Lawyer for the Respondents : N Yalo Lawyers