N9753

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA 20 OF 2022

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT UNDER SECTION 57 (ENFORCEMENT OF GURANTEED RIGHTS AND FREEDOMS

BETWEEN:
ATI WOBIRO
Plaintiff

AND:
SIMON SINAI
as the Electoral Commissioner of Papua New Guinea
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Tamade AJ
2022: 24th & 27th June

CONSTITUTION – Section 103 (3)(e) – Qualifications for and Disqualifications from Membership – a person cannot qualify to be or remain as a member of Parliament if he has been convicted under any law for an indictable offense that carries an imprisonment sentence for more than 9 months – unless the conviction was quashed by the Supreme Court, or the convicted person was pardoned under section 151 of the constitution – plaintiff was charged with conspiracy to defraud the State – convicted and sentenced to 11 years in prison – plaintiff appealed to the Supreme Court against his conviction and sentence – Supreme Court reduced his sentence on misappropriation down to 6 years – Supreme Court dismissed both appeals on conviction on charges of misappropriation and conviction and sentence of conspiracy to defraud – convictions on charges and sentence still remain – plaintiff is not eligible to contest national general elections. 

ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS 1997 – Section 87 – Requisites for Nomination – the Electoral Commission may reject the nomination – if Electoral Commission has motive to believe a person who has been nominated is not qualified to be a Member of Parliament.

Cases Cited:
Papua New Guinean Cases

Marape v Tom Tomiape & Anor (No.2) (2007) SC 856 
Tomscoll v Independent State of Papua New Guinea [2012] PGSC 44; SC1208
SCR No. 6 of 2022- Special Reference pursuant to Constitution Section 19, Reference by Hon. Pila Niningi , Attorney General.
Commander of Beon Correctional Institution and The State v Katerine Mal [2022] SC 2186
Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853 
Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2001] PNGLR 279
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 
Kondra v Lenalia [2016] PGSC 44; SC1527 

Overseas Case

American Cyanide Company v. Ethicon Limited [1975] UKHL 1; (1975) 1 All E.R. 504

Counsel:

 Mr Justin Wohuinangu and Ms Rakap Wak, for the Plaintiff
Mr Joppo Simbala, for the First Defendant
Mr Tauvasa Tanuvasa and Mr Troy Mileng, for the State

27th June, 2021

1. 	TAMADE AJ: This is a ruling on an urgent interim application by the Plaintiff against the Defendants essentially seeking Court Orders to allow him to contest the Western Province Regional Seat in the 2022 National General Elections.

2. 	The application was listed before me on Friday 24 June 2022 and Mr Wohuinangu of the Plaintiff sought to stand the matter down from the morning to 1:30 pm in the afternoon. I then directed that Mr Wohuinangu out of courtesy to the Defendants should serve the documents on the Defendants and or bring the matter to the attention of the Defendants and the Court will hear the matter at 1:30 pm.

3. 	Mr Wohuinangu then proceeded to bring the matter to the attention of the Defendants and at 1:30 pm, I granted leave to Mr Simbala of the First Defendant and to the Solicitor General, Mr Tanuvasa to appear for the Second Defendant, the State and proceeded to hear the urgent application by Mr Wohuinangu. 

4. 	The Plaintiff therefore, is seeking interim orders in the following terms apart from orders seeking a dispensation of the Rules of Court as to service of the application on the Defendants:

i)	Pursuant to Order 12 Rule 1 and Order 14 Rule 9(a) of the National Court Rules and Section 155 (4) of the Constitution, that pending the determination of the substantive issues contained in the Human Rights Enforcement Application herein, an order restraining the First Respondent, by himself or his servants, employees or agents from:

a)	disqualifying the Plaintiff; or
b)	revoking the Plaintiff’s nomination pursuant to section 87 of the Organic Law on National and Local Level Government Elections as a candidate to contest the Western Province Regional Seat for the 2022 National Elections.

ii)	In the alternative, an order in the nature of interim mandatory injunction pursuant to Order 12 Rule 1 and Order 14 Rule 9(a) of the National Court Rules or alternatively section 155(4) of the Constitution, that until the hearing of and determination of this proceeding, or a decision on the Application for Slip Rule in SCRA No. 44, 45 & 47 of 2016 is handed down and he lost or until further earlier order the Plaintiff’s candidacy be restored to contest the Regional Seat for Western Province.

5. 	Mr Wobiro, the Plaintiff states in his affidavit that in 2012, he was appointed the Provincial Member of Parliament for Western Province. In 2015, during his term of office, he was charged with two other persons for conspiracy to defraud the State and following a National Court trial, he was convicted and sentenced to 11 years in prison.

6. 	Mr Wobiro lodged an appeal against his conviction and sentence in the Supreme Court and on 23 February 2017, the full Supreme Court consisting of a three men bench heard his appeal and on 27 April 2017, the Supreme Court handed down a decision which reduced his sentence on the charge of misappropriation down to six years however the appeal as to conviction on the charge of misappropriation and the appeal on the conviction and sentence on the charge of conspiracy to defraud was dismissed. 

7. 	On 18 May 2017, Mr Wobiro lodged an Application for Leave to File a Slip Rule Application in the Supreme Court to review the decision of the Supreme Court of 27 April 2017.

8. 	On Monday 22 June 2022, the Electoral Commission of PNG issued a press statement regarding the Supreme Court’s decision on the interpretation of Section 103(3)(e) of the Constitution that a person is not eligible to contest the 2022 National General Elections and is stopped from being a Member of Parliament when he/she is convicted of an indictable offence that carries a sentence of imprisonment for more than 9 months effective from 25 June 2002. The two exceptions are that unless the conviction and sentence have been quashed by the Supreme Court or the convicted person has been pardoned under section 151 of the Constitution.

9. 	The Electoral Commission therefore, invited a list of convicted persons including Mr Wobiro to demonstrate that their conviction and sentence have been quashed by the Supreme Court or they have been pardoned for their crimes and they were to demonstrate this to the Electoral Commission by Thursday 23 June 2022 before 4:06 pm failing which their nominations will be rejected pursuant to section 87(2) of the Organic Law on National and Local Level Government Elections.

10. 	On 20 June 2022, Mr Wobiro’s Lawyers, Gileng & Co Lawyers wrote to the Electoral Commissioner and pleaded that their client should not be rejected from the nominations in the elections as his case falls under the exceptions under section 103(4) and (5) of the Constitution. Mr Wobiro’s Lawyers requested that the Commissioner refrains from removing him as a candidate in the elections and refrain from publishing false and misleading information regarding Mr Wobiro.

11. 	On 21 June 2022, the Electoral Commissioner wrote to Mr Wobiro’s lawyers and acknowledged their letter regarding their client’s situation and stated that Mr Wobiro had exhausted his right of appeal and that his conviction and sentence still stand as per section 103(4)(b) of the Constitution. The Electoral Commissioner referred to the case of James Marape v Tom Tomiape & Anor (No.2) (2007) SC 856 and the case of Tomscoll v Independent State of Papua New Guinea [2012] PGSC 44; SC1208 that it is the Commissioner’s position that Mr Wobiro’s Application for Leave to Apply for a Slip Rule in the Supreme Court does not substitute a right of appeal against either his conviction or sentence as a slip rule application is only to correct a glaring error or mistake in the judgment or Order of the Court. The Commissioner was of the view that the fact that Mr Wobiro had served out his sentence does not qualify him to stand for the elections as his conviction and sentence still stand pursuant to section 103(3)(e) of the Constitution and the recent Supreme Court decision in SCR No. 6 of 2022- Special Reference pursuant to Constitution Section 19, Reference by Honourable. Pila Niningi, Attorney General.

12. 	Mr Simbala representing the Electoral Commission has also argued that the Plaintiff has come to Court late to seek injunctions as the date on which the Electoral Commissioner has requested for Mr Wobiro and others to respond to his press statement had lapsed on 23 June 2022 and there is nothing to restrain. Mr Simbala argues that it therefore, negates Mr Wobiro’s standing as from 4:06 pm on 23 June 2022, Mr Wobiro is no longer a candidate as per the decision by the Electoral Commissioner. 

13. 	Mr Simbala argues that the process has taken its course as Mr Wobiro has appealed to the Supreme Court and the Constitution of the Independent State of PNG should be adhered to as Mr Wobiro was convicted and sentenced, and his conviction and sentence still stand though his sentence was varied however it has not been quashed by the Supreme Court and he has not received a pardon.

14. 	Mr Simbala makes the submission that the qualification and or disqualification from membership to the National Parliament is a requirement of the Constitution and therefore the National Court Rules cannot trump over the Constitution.

15. 	Mr Simbala argues that section 50 of the Constitution being a right to vote and stand for public office is a qualified right and that public interest and the general interest of justice militates against the grant of such injunctive relief.

16. 	Mr Tanuvasa, the Solicitor General has objected to the Plaintiff’s application and relies on the Supreme Court case of Commander of Beon Correctional Institution and The State v Katherine Mal [2022] SC 2186 which is the authority that a claim against the State for enforcement of a Constitutional right or freedom must be preceded by a section 5 notice pursuant to the Claims By and Against the State Act. Mr Tanuvasa submits that these proceedings are void ab initio as the Plaintiff has not issued a section 5 notice which is a pre-condition to any claim as against the State including claims for enforcement or breach of Constitutional rights. When the Court enquired with Mr Wohuinangu of the Plaintiff as to section 5 notice, Mr Wohuinangu replied that he has no submissions. 

What then are the legal principles to consider in the grant of an interlocutory injunction?

17. 	The Supreme Court in the case of Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853 (2 February 2007) affirmed the principles for the grant of interlocutory injunctions as:

i)	There must be a serious question to be determined on the substantive proceedings.
ii)	Balance of convenience must favour the grant of such a relief to maintain a status quo.
iii)	If damages is an adequate remedy, then the injunctive orders should not be granted.
iv)	a need to give an Undertaking as to Damages.

18. 	The case of  Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2001] PNGLR 279 sets out the principles for the grant of stay of a decision under review and these principles are similar to that of injunctions except that it looks at the decision the subject of the review and or appeal rather than the conduct sought to be restrained as explained in the case of Makeng v  Timbers  (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008).  I had enquired with Mr Wohuinangu whether it was the decision of the Electoral Commissioner his client seeks to stay as the conduct of the Electoral Commissioner Mr Wobiro seeks to restrain had passed. The Defendants argued that the Plaintiff expressly sought an injunction in their application and not a stay.

19. 	The case of Kondra v Lenalia [2016] PGSC 44; SC1527 (21 June 2016) adds to the list of considerations taking into account the public interest principle as to matters for consideration in the grant of stay. There have been other authorities that have added public interest and the interest of justice principles to the considerations for the grant of injunctions. In the case of American Cyanide Company v. Ethicon Limited [1975] UKHL 1; (1975) 1 All E.R. 504, the House of Lords considered the principles for the grant of injunctive relief and in regard to the balance of convenience, it was held that when all things are considered, the status quo in a matter should be preserved. Can an injunctive order work to reverse an act and preserve it? I am of the view that in so far as preserving the status quo of a matter, an applicant must be swift to run to Court to preserve the right he claims is being threatened and to preserve the status of the circumstance giving rise to that right however an injunction cannot act in the reverse and or in a retrospective manner.

Does the Plaintiff have an arguable case warranting the Court’s time?

20. 	Bearing in mind that not all cases will invoke all the principles for the grant of interlocutory injunctions as each case will be looked at on its own merit and peculiarity, perhaps the most important consideration in the grant of an interlocutory injunction, in this case, is whether the Plaintiff has an arguable case. 

21. 	Making a cursory enquiry into the arguments of this matter, the Plaintiff’s conviction and sentence have not been quashed by the Supreme Court and or the Plaintiff has not been given a free pardon pursuant to 103(3)( e) of the Constitution and the recent Supreme Court decision in SCR No. 6 of 2022- Special Reference pursuant to Constitution Section 19, Reference by Hon. Pila Niningi, Attorney General.

22. 	The Plaintiff’s arguments of falling under the exceptions of section 103(4) and (5) of the Constitution is that he has lodged an application for leave to apply for a slip rule in the Supreme Court on a decision of the full Supreme Court on his conviction and sentence and says that his application for leave for Slip Rule is within the meaning of “appeal” in section 103 of the Constitution is arguable. However, I am of the view that Mr Wobiro does not have a Slip Rule Application in the Supreme Court as yet until the Supreme Court grants him leave according to his Application for leave to apply for a Slip Rule. The Supreme Court is yet to decide whether to grant Mr Wobiro leave to proceed with a Slip Rule application and therefore to my mind, there is no slip rule application yet before the Supreme Court to materialise, crystalise or manifest the argument that a slip rule falls within the meaning of “appeal” as referred to in section 103 of the Constitution. Mr Wobiro is yet to get through the door so to speak in the Supreme Court at the leave stage and it is my considered view that he does not have a hearing subject to the Supreme Court’s jurisdiction as yet until he is granted leave where in sections 103(4) of the Constitution in regard to an appeal is directed to a right of hearing of appeal within the required time stipulated in the relevant appeal period and so determined by the Supreme Court for appeals lodged within time and properly before the Supreme Court. Mr Wobiro is not inside the Supreme Court yet so to speak until he is given leave and therefore at this stage, his argument as to whether his slip rule application can be considered within the meaning of an ‘appeal’ makes it an arguable case for the purpose of this injunction is superfluous at this stage. 

23. 	I am of the view that Mr Wobiro does not have an arguable case as yet until the Supreme Court grants him leave to apply for Slip Rule. Mr Wobiro’s conviction and sentence still stands without a free pardon.

24. 	Mr Wobiro’s constitutional right under section 50 of the Constitution is a qualified right. The public interest considerations in relation to the power of the Courts in the dispensation of justice as enshrined in the Constitution which includes finality in litigation or finality in the court process of appeal and the power of the Supreme Court as the highest and the last avenue of legal recourse is also an important consideration in this matter. The Courts must be seen as performing the function of justice, of exercising the power of the people of Papua New Guinea vested in it and the public trust and confidence must be absolute in fortitude that this system works and works vigorously well though it stands to be challenged.

Does Mr Wobiro have standing to even raise the issue of arguability? 

25. 	I accept the submissions by Mr Simbala that as of 4:06 pm on 23 June 2022, Mr Wobiro is no longer a candidate as per the Electoral Commissioner’s lawful authority to reject his nomination.

26. 	I also accept Mr Tanuvasa’s submission that there is no evidence before this Court to prove that the Plaintiff has issued a section 5 notice of his intention to claim against the State pursuant to the Claims By and Against the State Act and the Supreme Court authority in Commander of Beon Correctional Institution and The State v Katherine Mal.

27. 	The Plaintiff no longer has standing as he has lost his right as a candidate by virtue of the Electoral Commissioner’s decision and the Plaintiff is estopped from further proceeding with this matter as he has not met the precondition in section 5 of the Claims By and Against the State Act. 

28. 	These proceedings are therefore dismissed for all these reasons.

29. 	I, therefore, make the following orders:

(1)	These proceedings are dismissed.
(2)	The Plaintiff shall bear the costs of the Defendants for these proceedings to be taxed if not agreed.

Orders accordingly.

Gileng & Co Lawyers		: Lawyers for the Plaintiff	
Harvey Nii Lawyers		: Lawyers for the First Defendant
Office of the Solicitor General	: Lawyers for the Second Defendant