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Bowada v Tkatchenko [2021] PGNC 377; N9125 (2 September 2021)

N9125

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 115 OF 2021 (IECMS)


BETWEEN:
ELIZABETH BOWADA
Plaintiff


AND:
HONOURABLE JUSTIN TKATCHENKO MP MINISTER FOR HOUSING AND URBANIZATION
First Defendant


AND:
THE SECRETARY DEPARTMENT OF PERSONAL MANAGEMENT
Second Defendant


AND:
PUBLIC SERVICES COMMISSION
Third Defendant


AND:
THE NATIONAL EXECUTIVE COUNCIL
Fourth Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant


AND:
HENRY JOESPH MOKONO
Sixth Defendant


Waigani: Miviri J
2021: 1st & 2nd September


PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) Leave Application for Judicial review – Acting Managing Director NHC – National Housing Corporation Act 1990 Section – Delay – Locus Standi – arguable basis of – Exhaustion of Internal Processes – Materials relied insufficient – balance not discharged – Motion refused – Cost follow event.


Cases cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Counsel:


A. Mana, for Plaintiff
M. Tukuliya, for the Defendants


RULING

2nd September, 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons filed of the 16th August 2021 seeking leave for judicial review.
  2. She has filed a Statement in support pursuant to Order 16 Rule 3 (2) (a) (b) of the National Court Rules, together with an affidavit verifying facts that she has sworn, all documents filed of the 16th August 2021. And the subject decision was made by the National Executive Council on the 21st July 2021 appointing Henry Joseph Mokono as the Managing Director of NHC. There is no issue as to compliance within four months by Order 16 Rule 4 (2) to bring the cause of action. She is well within time and there is no delay, it is almost three weeks after the decision and this ground is in her favour. She discharges the balance in her favour.
  3. Plaintiff contends that leave lies because the second defendant failed to consult and allow the National Housing Corporation Board to submit the list of candidates for appointment to the position under section 4 (2) of the Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004.
  4. Further, that the second defendant’s decision in failing on receipt of a list of candidates for appointment to the position of Managing Director to the National Housing Corporation under section 4 (2) of the Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004, to prepare a list using the merit based process, of not less than three suitable candidates in the order of preference, either from the list submitted by the NHC Board or from the Original applicants to the position, to submit its recommendations to the NHC Board.
  5. Further, that the second defendant’s decision in failing upon receipt of a list of candidates for appointment to the position of Managing Director to the NHC under section 4 (2) of the Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004, to prepare a list using the merit based process, of not less than three suitable candidates in order of preference, either from the list submitted by the NHC Board or from the original applicants to the position, to submit its recommendations to the third defendant thereby bypassing the NHC board.
  6. That the second defendant’s decision in failing to consult the NHC Board, circumvented mandatory process whereby recommendations and the list of candidates passed to the First Defendant were not from the NHC Board.
  7. That the First Defendant’s decision in submitting his recommendations as to the preferred candidate for the position of Managing Director to the NHC, to the National Executive for its consideration, upon receipt of the list of candidates; and
  8. The fourth Defendant’s decision in considering the submission from the First Defendant and selecting the sixth Defendant as the Candidate recommended by the Minister, culminating in the sixth Defendant’s appointment on 03rd August 2021 as Managing Director of NHC cannot stand as the process in law has been avoided and therefore the decision does not stand in law.
  9. She relies on her affidavit filed of the 16th August 2021. Wherein she deposes that she was appointed to the position of the Acting Managing Director of the NHC on the 14th May 2019, on the recommendation of the NHC Board to the PSC, then to DPM, for gazettal of the acting appointment which was made retrospective to 2nd February 2021. It is not clear from her affidavit as to her appointment made retrospective to the 2nd February 2021. Because there is no instrument or gazettal notice attached to show this out. Her contention is self-serving without any independent material to advance.
  10. That affidavit relevantly deposes that on the 21st July 2021, the National Executive Council sat and made a permanent appointment of the Managing Director of the NHC of one Henry Joseph Mokono, and annexure “B” is the gazettal G528 of the 03rd August 2021.
  11. As annexure “D” of the affidavit is a letter dated the 15th October 2020 addressed to the First Defendant, the subject of which is “Constitution of Board Members of the National Housing Corporation.” It is written in response to the letter by the Minister the first Defendant of the 24th September 2020 requesting legal advice on numerous issues. And the letter continues, “I understand that in line with NEC Decision NG 184/2019, certain actions were taken to dismiss four (4) members of the National Housing Corporation Board (the NHC Board), on account of misbehaviour. Thus, there are currently vacancies in the Board membership. I note that all persons that were dismissed are all non-ex-officio members of the Board, one of which was the chairman.” The letter puts the constitution to constitute the board to be five but the coram in meetings to be three.
  12. The letter confirms dismissal of four members of the National Housing Corporation Board by a decision of the National Executive Council Decision number NG 184/2019 for misbehaviour. It means effectively there is no Board of the National Housing Corporation in existence. And the names on the alleged minutes of Mr Benjamin Samson, Mr Stephen Nukuitu, Mr Simon Vai and Ms Elizabeth Bowada are not by that same process elected in place of those who are dismissed by the National Executive Council. But if it were in existence its powers are as set out by section 7 of the National Housing Corporation Act (the Act) there are nine Board Members. The supposed minute has four only. And the chairman is appointed by the head of State pursuant to section 8 of that Act. Here there is a nomination of the chairman which is clearly not in accordance. That is not the same as saying there is a Board in existence and performing what the National Housing Corporation Act 1990 calls for.
  13. Because this fact is made out by the supposed Agendas for the Special Board Meeting No. 1 of 2020 meeting minutes, attached to the affidavit of the Plaintiff as annexure “D”. Allegedly it is a meeting on the 20th November 2020. Time of the meeting is 10am-5.33pm. There is no break in the meeting either for morning Tea or Lunch or even afternoon tea. The document itself is not a complete document. It is a scanned or photocopied document and does not have the end to it. It also has a lot of its parts missing and not readable. There are five pages and this is borne out either at the top of the page or the bottom unreadable or missing out in the completion of the sentences. A number of sentences either at the end or the top are fading. No explanation is given as to why it is photocopied as it is.
  14. Further it is important to have the proper officer sign on the minute to show that it is indeed stemming out by a process observed in law. Because it is not clear as to who is taking the minutes of that meeting, and from which records it is being sought and attached as an affidavit to that of the Plaintiff. If it is official records of the National Housing Corporation, because of the fact that it is a Public Company, it would have a designated officer discharged with keeping the records, so that as here, he would be the person authenticating that copy as genuine from the original, he maintains within. There is not even an official seal to show that indeed it has come out as a result of the relevant process of law. That is not the case of the supposed minutes attached to the affidavit of the plaintiff. To give effect it must have name of the officer responsible within the NHC who are assigned as the Secretariat to the board. They would authenticate the records so that it is official records of the NHC. When a meeting is called there are notices also issued to the Board members. There are no notices to the alleged board members here named in the alleged minutes. There is also a gap and the figure 8 is typed as one word with 8sit. It can be traced to the officers within who prepared. Particularly with the fact as to who is the Executive Officer in place of the Acting Board Secretary welcomes the Board Members. Both are also not named so that it is genuinely derived and can be sourced back to authenticate.
  15. There is also acknowledgment at the outset, confirms dismissal of four members of the National Housing Corporation Board by a decision of the National Executive Council Decision number NG 184/2019 for misbehaviour. It does not detail out who these members were, who remained so as to be able to convene the meeting. And who replaced them when they were dismissed. That is also not by Gazettal number and decision number set out. It is therefore very hard to see where this minutes originates from given. It is not signed either by the Chairman or the Secretary at the conclusion timed and dated. For a Public Company minutes, it lacks a lot to be considered as genuinely produced or copied from an official record kept. It is in that respects not the best evidence essentially, because it is coming from the Plaintiff, who has a lot to make up for to see out in her favour. There is no independent assertion to back up that assertion that this is indeed a genuine minute from a board meeting held.
  16. The date is the 20th November 2020 when the supposed meeting allegedly takes place. It is not clear whether there were further meetings of the board after leading up to the 21st July 2021, when the National Executive Council sat and made a permanent appointment of the Managing Director of the NHC of one Henry Joseph Mokono. That is a period of eight (8) months without a Board Meeting. It would not be ordinary. And the reference is clear on the alleged minute BM 1of 2020. It means it has just started but upon what basis is not made out in the totality of the evidence as considered.
  17. Given that the first defendant Minister has sought the advice of the State Solicitor on the matter, it begs as to why he would ignore in the face of that advice, to go down a whole procedure set out by section 13 of the Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004. That is there is no board in existence within the NHC, and therefore the call to exercise in accordance with Parts 2, 3, and 4 of the Act, is therefore now exercised by the Department responsible for personal management matters. Here evidenced by his affidavit, Hon Justin Tkatchenko, MP Minister for Housing and Urban Development of the role played out by his counterpart Ministers, Hon former Public Services Minister Westly Nukundj, and Hon Minister for Public Service Soroi M, Eroe, particulars set out in annexures “A” , “B” , “C”, “D”, “E”, “F” and “G”. Including the role that the Public Services Commission as a Constitutional Office together with that of the Department of Personal Management has played out here leading.
  18. The First Defendant has categorically sworn by his affidavit that, “This entire proceedings is misconceived because the Plaintiff has no standing at all to bring this action because her term as Acting Managing Director of National Housing Corporation lapsed since 01st May 2020 and my attempts to extend her acting appointment was refused by the Public Services Commission because she was arrested, charged by the Waigani Committal Court to stand trial at the National Court in Matter CR(FC) No. 22 of 2021: The State v Elizabeth Bowada.” The particulars are set out in the annexure “A” showing clearing she has an Indictment that arises of misappropriation and false pretence from the office she occupied in the sum of K 132, 065.63. The Indictment is from the office of the Public Prosecutor. A pretrial review form has been filed in her case of the 1st April 2021 in the National Court on the matter.
  19. It maybe just an allegation yet to be proved, but it does not look well on her as incumbent to the office of Managing Director of the NHC. That view is clearly expressed by former Minister for Public Services Hon Westly Nukundj, which is in the allegation filed by the Public Prosecutor in the pretrial review form detailing, “The Accused at the material time was the Senior Legal Officer with the National Housing Corporation (NHC). On the 13th September 2012 she was dismissed from office without pay on allegations of her involvement in the sale of two NHC properties sometime in 2011. It is alleged that sometime between 1st April 2015 and 31st January 2020, the Accused obtained from the National Fraud and Anti-Corruption Directorate a letter dated 10th January 2018 written to the Acting Managing Director of NHC Kenneth Cooke regarding clearance of the Accused from the above allegation. The Accused presented this letter to the former Acting Managing Director of NHC for her reinstatement.
  20. The State further alleges that the Accused falsely pretended to NHC that she was entitled to Salary back date and obtained from NHC money in the total sum of K118, 468.01 with intent to defraud. Her actions amounted to the offence of False Pretence contravening section 404 of the Criminal Code.
  21. Further that she dishonestly applied to her own use and the use of other K118, 468.01 the property of the State. Her actions amounted to the offence of Misappropriation of property contravening section 383A (1)(a) and (2) (d) of the Criminal Code.”
  22. Merit based appointment includes in my view that there is no allegation against the incumbent, because to be a fit and proper person means that there is no level of allegation pertaining to the job in question. That is primary and has been seen out by the Ministers responsible in the affidavit filed attaching their letters. These are Ministers of Government who are there for the common good of the Country and its people. If it is their view that there is no board to give effect to the requirements of section 4 (2) Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004 and therefore the play of section 13 of that Act, then it follows in my view that procedure has been accorded the Plaintiff in the matter. She is a terminated officer who has been reengaged, but then placed in an acting capacity. Like all in similar it has a specific run of three months which has lapsed in her case 2nd February 2020 to 1st May 2020, per letter by Hon Soroi Eroe MP Minister for Public Service dated the 10th February 2020. This is confirmed by the letter dated the 13th May 2020 by the First Defendant. This letter has also set out clearly there is no fully functional board of the NHC, and therefore revert to section 13 of the Act and the role of the appointment played by the PSC, and the Department of Personal Management. This is verified by Annexure “F” submission of Public Services commission on short list on the appointment of the Managing Director for the National Housing Corporation as required by section 4 (2) of the Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004. And letter under hand of the Secretary of the department of Personal Management Taies Sansan who signs as Secretary and proxy Chairperson.
  23. There is in my view a clear marked procedure followed to the letter of the law to come out with the appointment of the incumbent Henry Joseph Mokono as the Managing Director of NHC. This is specifically stated per the affidavit of the First Defendant, “Nevertheless, the NHC Board was dysfunctional thus the Department of Personal Management (DPM) assumed the role of the Board and in close consultations with myself, DPM recommended for a further three (3) months extension of the Plaintiff’s acting appointment from 02nd February to 01st May 2020. The PSC endorsed the recommendation and advised the Public Services Minister on the 10th February 2020. Thereafter on the 13th May 2020, the then Minister for Public Service Hon Soroi M. Eoe, MP wrote to me advising that the three (3) months acting appointment of the Plaintiff lapsed on the 01st May 2020 and fresh recommendation is required and the DPM will facilitate the necessary actions.”
  24. On the 03rd December 2020, the Secretary of DPM acting in her capacity as proxy Chairperson of the NHC Board made recommendation to the PSC five (5) shortlisted candidates including the plaintiff on the fifth place. The PSC made its independent assessment and on the 09th of March 2021 PSC recommended only three (3) candidates for permanent appointment and specifically mentioned that the Plaintiff was eliminated as it was established during the interview and from clearance checks with the Public Prosecutor’s office that she has pending charges of Misappropriation and False Pretence before the Waigani Committal Court. Annexure “F” is that submission. “ Based on the PSC recommendations, I endorsed the NEC submission and the National Executive Council appointed Henry Joseph Mokono who was first on the list of 3 candidates and his appointment was gazetted on the 03rd August 2021 in Gazettal notice G.524 of 2021.” Annexure “G” is the gazettal notice.
  25. The totality of this evidence is that judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [ 2014] PGNC 288; N5949 (17 March 2014). The section 4 (2) of the Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004, was not by passed. It was acceded to in its full terms because there was no functional Board of the NHC. Four members were dismissed from office by the NEC for misbehaviour in office. It did not follow the same process to appoint new ones in its place. There was no evidence that this was the case with Benjamin Sampson, Stephen Nukuitu, Simon Vai, Elizabeth Bowada, and Koney Samuel. And the minute relied on was second or third hand evidence not sourced as to where it derived by its custodian if it was indeed business records by section 63 of the Evidence Act. It did not advance that there was a board of the NHC functional and discharging. There is no evidence of its continuity from the 20th November 2020. It seemed to have opened shop specifically for that day and closed without any further determinations or deliberations made to run the NHC.
  26. The question is why the political heads would, as well as the administrative heads of government go through a tedious meticulous process with legal advice backing and opt for a process under section 13 of Regulatory Statutory Authorities (Appointment of Certain Offices) Act 2004. Clearly there must be evidence warranting to so opt and run. Especially relating to an entity of Government a corporation of Government seen as a Company generating returns for the Government and the State. It warranted in view of the evidence set out above. The NHC Board was not operational, under its Act section 7 constitution of the Corporation there were to be nine (9) members comprising members of the board. Clearly the evidence does not correspond with section 7 (a) and (b) here. There was no board because four were dismissed and there is no evidence four were reinserted by that same way. It means for all intent and purposes there was no Board of the NHC functional and operating.
  27. That is the reason and the evidence that warranted the operation of section 13 of the Act and not section 4 (2) hence it is not an error in procedure. There was compliance in law and there was no error in procedures arguable to take to leave for judicial review. It is clear by NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 (6 May1987) that the discretion of the court does not lie here given these facts. Because the applicant does not have standing discharged to the required balance in her favour prima facie. Nor does she demonstrate an arguable basis to go that way. Arguably all reasonable available steps within have been exhausted and it leaves no basis opening her door for leave for judicial review: Makeng v Timbers (PNG) Ltd [ 2008] PGNC 78; N3317 (23 April 2008). The totality is that there is no merit to grant as applied.
  28. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Corrs Chambers Westgarth: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Defendants

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