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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
W.S No. 712 OF 2015
BETWEEN:
SKY DEVELOPMENT CORPORATION LIMITED
Plaintiff
AND:
JOHN EMAU as OFFICER IN CHARGE INFRASTRUCTURE SINASINA YONGUMUGL DISTRICT ADMINISTRATION
First Defendant
AND:
BOYD SIKA, CONSULTING ENGINEER, SINASINA YONGOMUGL DISTRICT ADMINISTRATION
Second Defendant
AND:
JOHN WAMIL GUL as DEPUTY DISTRICT ADMINISTRATOR, SINASINA YONGOMUGL DISTRICT ADMINISTRATION
Third Defendant
AND:
BAL NUMAPO as DISTRICT ADMINISTRATOR, SINASINA YONGOMUGL DISTRICT ADMINISTRATION
Fourth Defendant
AND:
SINASINA YONGOMUGL DISTRICT ADMINISTRATION
Fifth Defendant
AND:
SIMBU PROVINCIAL GOVERNMENT
Sixth Defendant
Kundiawa: Liosi AJ
2016: 17 October
2017: 3 March & 15 June
CIVIL PRACTICE & PROCEDURE – Alleged breaches of sections 5(1) & 6(2) of Organic Law on Duties and Responsibilities of Leadership 1998 – Rule 12 Lawyers Professional Conduct Rules 1989 – Application to remove defendants lawyers – Whether s.154 (4) of the Constitution can be invoked – Appropriateness of – Specific provisions in the Organic Law on Duties and Responsibilities of Leadership 1998 and Lawyers Professional Conduct Rules 1989 not utilised – In the public interest – Whether to allow the due process and procedures under the respective legislations to take their course – Motion dismiss with costs.
Held:
(1) In the public interest it would be proper to allow for the due process and procedures under the respective legislations to take their cause.
(2) Invoking Section 155 (4) of the Constitution would be an abuse of process of the Court where there are existing processes and procedures under the respective legislations.
Case cited:
Boateng v. The State [1990] PNGLR 342
Melchior Pep [2007] N3134
Eremas Wartoto v. The State [2015] SC1411
William Powi v. Southern Highlands Provincial Government [2006] SC 844
Avia Aihi v. The State [1984] PNGLR 92
Counsel:
Kumoro Sino, for the Plaintiff
Goiye Gileng, for the Defendants
Ruling on Application
15th June, 2017
3. The plaintiff relies on the affidavit of Sobu Kama filed on the 19th April 2016. His evidence is that the Honourable Kerenga Kua prior to becoming a Member of Parliament in July 2012 was practicing as a partner to the law firm of Posman Kua Aisi Lawyers. The said law firm still retains the members name in the law firm’s name. When this proceeding was filed against Sinasina Yongomugl District Administration, Honourable Kerenga Kua briefed the matter to his former law firm of Posman Kua Aisi Lawyers. The counsel having carriage of the matter on behalf of the first, second, third, fourth & fifth defendants is Mr. Goiye Gileng who is the partner in charge of litigation with Posman Kua Aisi Lawyers and is the Honourable members brother. The brief-out by the Honourable member to the defendant’s current lawyers is said to be on pro bono basis.
4. The legislative provisions relied upon by the plaintiff are; Section 5(1) & Section 6(2) of the Organic Law on Duties & Responsibilities of Leadership 1998. The said provision reads:
“5. Use of office for personal benefit, etc...
(1) A person to whom this law applies who, except as specifically authorized by law, directly or indirectly asks for or accepts, on
behalf of himself or an associate, any benefit in relation to any action (past, present or future) in the course of his duties, or
in the course of or by reason of his official position, is guilty of misconduct in office.
(2) Subsection (1) extends to the case of a person to whom this law applies who, except in the course of and for the purpose of his official duties or his official position, uses or allows his name or his official position to be used for the benefit of himself or any other person.”
“6. Personal interest;
(1) A person to whom this law applies who fails to reveal to the Ombudsman Commission and the appropriate authority the nature and
extent of his interest, or the interest of an associate, in a matter with which he has to deal in his official capacity is guilty
of misconduct in office.
(3) A person to whom this law applies-
(a) who, or an associate of whom, has an interest in a matter which he has to deal with in an official capacity; and
(b) who does with that matter (whether by voting on a question concerning it or otherwise),”
5. The other provisions of the law which are relevant to this application are Section 26, 27, and 28 of the Constitution:
Section 26(c) of the Constitution provides that a Member of Parliament is a leader who is affected by the Leadership Code.
Section “27. Deals with Responsibilities of office. That is that;
(1) A person to whom this division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons.
(2) In particular, a person to whom this Division applies shall not use his office or personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1)”.
(c) Section 28 of the Constitution provides a further provision that gives to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic law;........”
6. The plaintiff relies on the case of Boateng v. The State (1990) PNGLR 342 where the Supreme Court held at page 46 that:
“Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of a case. However impeccable a judgment or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association has no effect on the outcome of the case.”
7. The plaintiff submits that Honourable Kerenga Kua has briefed this matter to his former law firm where his brother is a partner. Such action is contrary to the intent and spirit of section 5(1). By doing so he is bringing disrepute to the office he holds. Section 27(2) prohibits anything done that will raise doubts in the public mind as to whether or not he is carrying out his duties as prescribed under Section 27(1) of the Constitution. The principle enunciated in Boateng v. The State (above) on public perception of bias to members of the judiciary are equally applicable to members of Parliament. He submits the member has an interest in the matter therefore the plaintiff is taking issue with the brief-out of this court matter.
8. The plaintiff relies on Section 155(4) of the Constitution to invoke the jurisdiction of the Court to deliberate on this application. It notes the defendant’s line of submissions that the issues raised by the plaintiff can be raised at the leadership tribunal by way of a complaint to the Ombudsman Commission. Secondly, that one has to have a primary right upon which the court can invoke Section 155(4) of the Constitution.
9. It is submitted that the Court does have the jurisdiction to deal with the plaintiff’s application. This issue posed arises in the course of the within proceedings filed in the National Court. Leadership tribunals are quasi-judicial tribunals: Re: Melchior Pep (N3134). This means that they are not full court but courts less than National Court. Their rulings can be subject of review by the National Court. To that extent this Court also has overriding powers under Section 155(4) of the Constitution to deliberate on issues arising in National Court proceedings raising issues pertaining to application of provisions of the Leadership Code.
10. It is further submitted that Section 155(4) of the Constitution can be invoked when one has a primary right. The plaintiff concedes to that line of submissions. The plaintiff as a member of the public has a primary right to lodge a complaint with the ombudsman commission. That right is still reserved by the plaintiff. However, it is up to the plaintiff whether or not he chooses to lay a complaint to the Ombudsman Commission. It is within the ambit of this primary right to lay a complaint that the plaintiff is asking the court to exercise its discretion under Section 155(4) of the Constitution.
11. The brief out of work to the defendants on a “pro bono basis” is questionable. The defendant is a government body. It is the Sinasina Yongomugl District Administration. The defendants are servants and agents of the fifth defendant. The defendant’s lawyers are based in Port Moresby. The proceedings are filed in Kundiawa. The pro bono work is normally given to those who cannot afford legal services. It is normally done for individuals and not corporative and government bodies.
12. The evidence on the second issue is that defendants counsel is the brother of the Member for Sinasina Yongomugl. The law on the second ground of the application is set out at Rule 12 of the Lawyers Professional Conduct Rules 1989. On that basis the plaintiff says that the lawyer must be disqualified.
Defendant’s submission to plaintiff’s motion
13. The plaintiff relies on sections 5(1) & 6(2) of the Organic Law on Duties and Responsibilities of Leadership 1998 (“Organic Law) and section 12 of the Professional Conduct Rules to remove Posman Kua Aisi and Mr. Gileng from having further conduct of this and the related proceedings on behalf of the defendants. This is on the basis that Hon. Kerenga Kua was a former partner at Posman Kua Aisi lawyers prior to him becoming a Member of Parliament in 2012 and that his name “Kua” is still used by Posman Kua Aisi. Furthermore, Mr Gileng is Honourable Kerenga Kua’s biological brother.
14. The defendants submit that the Organic Law has no application for the purpose of this and the related proceedings before the National Court. The Organic Law by its scheme and nature confers upon the Ombudsman Commission the powers, functions and responsibilities to administer the Leadership Code for misconduct in office by those leaders covered by the Leadership Code. The Organic Law is not an appropriate law for which the plaintiff can rely upon to seek the orders that it seeks before this forum being the National Court for the reasons stated below.
15. The preamble of the Organic Law provides “Being a Provisional Organic Law to implement Division III.2 (leadership code) of the Constitution.”
Pursuant to Section 3 of the Organic Law, the powers, functions and duties to implement the Organic Law is conferred upon the Ombudsman Commission. Section 18 of the Organic Law states:
“A person may make a complaint to the Ombudsman Commission concerning the alleged or suspected misconduct in office of a person to whom this law applies”.
16. Section 19, 20, 21, 22, 23, 24, 25 & 26 sets out the processes and procedures by which the Ombudsman Commission upon receipt of a complaint by any person shall process and undertake its investigations and make referral upon being satisfied that the leader the subject of the Leadership Code is guilty of misconduct in office to the office of the Public Prosecutor or appropriate tribunals for further prosecution. Section 27 provides:
“If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reason for its opinion:
(a) to the Public Prosecutor; or
(b) to the appropriate tribunal referred to in Subsection (7).”
17. The defendants therefore submit that the purpose and intent of the organic law is to deal with leadership issues concerning leaders who are covered under the leadership code for alleged misconduct in office. The powers, functions, duties and responsibilities prescribed under the organic law is conferred upon the Ombudsman Commission to be administered by its own procedures and processes established by the relevant provisions.
18. The defendants further submit that Order 4 Rule 49(8) of the National Court Rules provides that all motions must contain a concise reference to the court’s jurisdiction to grant the orders sought. In this case, section 5(1) & 6(2) of the organic law do not provide any jurisdictional basis for the relief sought and therefore must be refused.
19. The defendants submit that section 5(1) & 6(2) of the organic law have no application to the facts before the Court. There is no evidence of personal benefit being derived by the member or Mr. Gileng. Hon. Kua stated in his affidavit that the brief out is accepted by Posman Kua Aisi Lawyers on a pro bono basis. There is no evidence by the plaintiff to suggest otherwise. The affidavit of Sobu Kama is merely making assumptions, conjectures, guess work which are really not primary evidence but opinions and mere personal views which are not facts.
20. The second part of the plaintiff’s application relates to section 12 of the Lawyers Professional Conduct Rules 1989. For purposes of section 12 of the Lawyers Professional Conduct Rules the plaintiff must establish that it would be difficult for Mr. Gileng to maintain his professional independence and his involvement would prejudice the impartial administration of justice.
21. The defendants submit that Hon. Kerenga Kua is merely acting in his capacity as Chairman of the then Joint Planning & District Budget Priorities Committee for Sinasina District and he does not have any personal interest in the outcome of the proceedings.
22. Although Mr. Gileng of counsel and Hon. Kerenga Kua are related as brothers, there is no evidence to suggest that Mr. Gileng will not maintain his professional integrity and independence as a lawyer and officer of this court to dilute his professional independence. All the plaintiff is saying is that because Mr Gileng and Hon. Kua are biological brothers, Mr Gileng should not act in the matter as he will not maintain his professional independence as a lawyer.
23. The affidavit of Sobu Kama filed in support of this application is merely making unfounded allegations without having the evidence to support its submissions on law.
24. The defendants submit the organic law has no application herein. By its scheme the organic law authorizes the Ombudsman Commission to administer the Leadership Code for those leaders accused of misconduct in office. He says section 18 of the organic law clearly states that such a process is normally done by complaint to the Ombudsman Commission. The Ombudsman Commission then investigates and upon satisfaction refers the matter to the public prosecutor or an appropriate tribunal. Its powers, functions, duties & responsibilities prescribed under the Ombudsman Commission is to be administered by its own procedures and processes established by its own provisions referred to above.
25. It further submits Order 4 Rule 49(8) of the National Court Rules states that all motions must contain a concise reference to the Court’s jurisdictions to grant the orders sought, Section 5(1) & 6(2) of the Organic Law do not provide any jurisdictional basis for the relief sought and must be refused.
26. In respect of breach of section 12 of the Lawyer’s Professional Conduct Rules 1989. The evidence submitted is all assumptions, opinions and perceptions held by Sobu Kama and there is no evidence to support the relief sought.
Ruling
27. I intend to deal with both issues raised under the Organic Law on Duties and Responsibilities of a Leader 1998 and the Lawyers Professional Conduct Rules 1989.As rightly pointed out by Mr. Gileng, each of the issues raised under both the Organic Law on Duties and Responsibilities of a Leader 1998 and the Lawyers Professional Conduct Rules 1989 have their own processes and procedures established by their own provisions.
28. The Supreme Court case of Eremas Wartoto v The State (2015) SC1411 discusses situations when section 155(4) can be invoked. In Wartoto’s case the District Court committed the appellant to stand trial in the National Court on two counts of misappropriation (Criminal Code section 383A(1)(a)). The State alleged that out of a contract for building works valued at K7.8 million only K700,000.00 was expended on the intended works and the balance of K7.1 million was expended on the appellant’s own and his company’s personal use. After the Public Prosecutor furnished a copy of the indictment in the criminal proceedings in the National Court the defendant commenced a separate civil action in the National Court for a permanent stay of the criminal proceedings, on the basis that the material on which he had been committed for trial did not disclose a case of misappropriation, because the State had paid the funds to a private company of the provision of services and the State no longer had an interest in the funds. The civil proceedings were dismissed and it is from that order that the appellant appealed.
29. One of the issues the Supreme Court dealt with in this case is “when to correctly invoke the provisions of s.155(4) of the Constitution.
30. The Supreme Court appreciated that the National Court by virtue of s.155(3)(a)&(b),(4) & (5) of the Constitution has an inherent power to review “any exercise of judicial authority or administrative decisions. However, the Court observed earlier, this power is subject to the principles which govern its exercise, which includes pronouncements in judgments by this Court and the National Court itself. In William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government, the Court noted that s.155 (4) has been the subject of abuse more than its proper use. After carefully reviewing the authority on point, the Court concluded, there are about 5 important features or attributes of s. 155(4) in these terms:
31. The Court can only reiterate that such a view only enforces well one of the cardinal principles in judicial review. That principle is the requirement for a person seeking judicial review to demonstrate amongst other requirements that he has exhausted all available remedies unless, such a person can show he or she is in the same setting as in the Avia Aihi case.
32. Hence, in the Eremas Wartoto’s case it would be an abuse of the process of the National Court and s.155 (4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code and the National Court’s Criminal Practice Rules. Further, the Court was of the view that if the National Court was to assume jurisdiction then, the Court would be usurping the powers of the Public Prosecutor. That would be an offence against the clear provisions of s.176(3)(a) of the Constitution which clearly stipulates that “in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority”. The National Court would also be usurping the powers and functions of the District Court and before that, the Police. This cannot be permitted in order that the due processes of the law and the systems and structures that are defined and established under our laws are allowed to properly function for the good of all. The opposite would be the case, if there was ready intervention by the higher Courts except only at the relevant and correct stages.
33. By the same token it would be an abuse of the process of the National Court and s.155 (4) of the Constitution itself for the applicant to seek to invoke s.155 (4) of the Constitution to seek remedies it seeks without first exhausting the remedies that are available under the respective laws. This are the Organic Law on Duties and Responsibilities of Leadership 1998 and the Lawyers Professional Conduct Rules 1989. Further, to do this the court would be usurping the powers of the Ombudsman Commission and the Lawyers Statutory Committee.
34. In my view, the issue raised by the plaintiff under both the Organic Law on Duties and Responsibilities of a Leadership 1998 and the Lawyers Professional Conduct Rules have their own processes and procedures established by their own provisions.
35. In this instance, such processes are clearly established under both the Organic Law on Duties and Responsibilities of Leadership 1998 and the Lawyers Professional Conduct Rules. For eg; In the case of Organic Law on Duties and Responsibilities of Leadership 1998, Section 18 of the Act clearly makes provision for such a process. That is that a complaint needs to be made to the Ombudsman Commission regarding the alleged or suspected misconduct in office of the leader concerned.
36. Sections 19, 20, 21, 22, 23, 24, 25 & 26 sets out the processes and procedures by which the Ombudsman Commission upon receipt of a complaint by any person shall process and undertake its’ investigations and make referral upon being satisfied that the leader subject of the Leadership code is guilty of misconduct in office to the office of the Public Prosecutor or appropriate tribunals for further prosecution. Section 27 provides:
If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reason for its opinion:
(a) to the Public Prosecutor; or
(b) to the appropriate tribunal referred to in Subsection (7),”
37. There are adequate avenues provided under the Organic Law on Duties and Responsibilities of a Leadership 1998 and the Lawyers Professional Conduct Rules 1989.
38. Section 155(4) of the Constitution should not be read and applied to override the processes established under s.18 of the Organic Law on Duties and Responsibilities of a Leadership and the Lawyers Professional Conduct Rules. They both have their own elaborate processes and procedures. Invoking s.155 (4) of the Constitution in my view would be an abuse of the process of the Court. It would further defeat the purposes for which such legislations were established.
39. Furthermore, in the absence of investigations been done pursuant to the elaborate processes and procedures prescribed under the respective legislations, it would be absurd and improper to grant any such orders the plaintiff seeks in the absence of proper investigations and findings been made by this Court. This can only be achieved by using and following the procedures and processes outlined in the respective legislations.
Ruling accordingly,
________________________________________________
Sino & Company Lawyers: Lawyer for the Plaintiff
Posman Kua Aisi Lawyers: Lawyer for the Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2017/146.html