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Gumoi v Gorgom [2015] PGSC 53; SC1008 (22 September 2015)

SC1008

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 19 OF 2015

BETWEEN:

DR MODOWA TREVOR GUMOI
Appellant

AND:

GULL GORGOM
First Respondent

AND:

JOHN KALI, SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT
Second Respondent

AND:

SIR PUKA TEMU, MINISTER FOR PUBLIC SERVICE AND CHAIRMAN OF THE MINISTERIAL EXECUTIVE APPOINTMENTS COMMITTEE
Third Respondent

AND:

THE NATIONAL EXECUTIVE COUNCIL
Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Kassman, J
2015: 9th and 22nd September

Cases cited:

Boyepe Pere v. Emanuel Ningi (2003) SC711
Hii Yii Ann v. Canisius Kami Caringu (2003) SC718
Honourable Andrew Baing and the Independent State of PNG v PNG National Stevedores Pty Ltd and Bank of South Pacific Limited SC627
Matiabe Oberia v. Chief Inspector Michael Charlie and Ors (2005) SC801
O'Neill and Anor v The Ombudsman Commission of Papua New Guinea and Ors OS (JR) No. 383 of 2014
O'Neil v Ombudsman Commission of Papua New Guinea (2015) N5857
Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240
The State v. John Talu Tekwie (2006) SC843

Legislation cited:

Constitution Section 18(2), 5(1)(f), 37(4)(a) and 38(2),
Organic Law on Provincial and Local Level Governments Section 74(1) and 73(2)
Public Services (Management)(Employment of Provincial Administrators) Regulation 2014
Public Services (Management) Act 2014
Section 5
Supreme Court Act c.37 sections 10(1) (a) and 14(3)(b)

Counsel:

GM Egan and Rakatani Raka, for the Appellant
Mathilda Konge, for the First Respondent
Irene Mugugia, for the Second, Third, Fourth and Fifth Respondents

DECISION

22nd September, 2015

1. Dr Modowa Gumoi ("Gumoi") applies for leave to appeal an interlocutory judgment of the National Court in proceeding OS (JR) No. 240 of 2015 made on 9 July 2015 where Nablu AJ refused Gumoi's application of 21 May 2015 to refer certain questions to the Supreme Court for determination pursuant to Section 18(2) of the Constitution. Earlier in that proceeding, Gumoi was granted a stay of the decision under review. The application for leave for judicial review has yet to be moved.
   

Background

2. Gumoi filed National Court proceedings OS (JR) No. 120 of 2015 seeking judicial review of the decision by the Third Respondent, or alternatively the Third and Fourth Respondents, in causing Gazettal Notice No. G127 of 2015 to be published on 23 February 2015. Gumoi claimed the appointment of the First Respondent Gull Gorgom ("Gorgom") as Acting Provincial Administrator for Western Province was unlawful on the ground the appointment was in excess of jurisdiction because it was an incorrect and unlawful exercise of power made pursuant to a legislative provision which did not relate to the appointment of an Acting Administrator of a Provincial Government, namely Section 74(1) of the Organic Law on Provincial and Local Level Governments, which section had no bearing upon the temporary or substantive appointments of Provincial Administrators.
   
3. Gumoi then filed National Court proceedings OS (JR) No. 240 of 2015 for judicial review of a second purported exercise of power by the Fourth Respondent in causing Gazettal Notice No. 141 of 2015 to be published on 2 March 2015 revoking the acting appointment of Gorgom as published in Gazettal Notice No. G127 dated 23 February 2015 and re-appointing Gorgom as Acting Provincial Administrator of Western Province. Gumoi claims the revocation and re-appointment of Gorgom was in excess of jurisdiction because it was an incorrect and unlawful exercise of power and was purportedly made pursuant to a legislative provision which did not relate to the re-appointment of Gorgom as Acting Administrator of Western Province, namely Section 73(2) of the Organic Law on Provincial and Local Level Governments, in that such section had no bearing upon Gorgom's temporary appointment as Acting Provincial Administrator.
   
4. In proceeding OS (JR) No. 120 of 2015, the Second Respondent filed an affidavit claiming Gumoi had been charged with committing an offence and that raised issue with Gumoi's ability as a fit and proper person to hold office contrary to section 5 of the Public Services (Management)(Employment of Provincial Administrators) Regulation 2014. Gorgom also swore an Affidavit filed on 13 April 2015 questioning Gumoi's ability as a fit and proper person to occupy the office of Acting Administrator of Western Province since criminal charges had been laid against Gumoi. Gorgom said the removal of Gumoi as the Acting Provincial Administrator would have culminated from a Police Arrest of Gumoi for twelve (12) counts of criminal charges for the alleged misappropriation of K7 million the property of the FRPG. The charges include separate counts of misappropriation of public funds, conspiracy to defraud and abuse in office. Gumoi says he is aware of his constitutional right to the presumption of innocence pending the hearing of those charges by a Court of competent jurisdiction, and he intends to fight for his innocence as he has done nothing wrong until otherwise convicted. Gumoi argues Section 37(4)(a) of the Constitution provides that he is entitled to the presumption of innocence unless and until convicted and to the extent that the Regulation is relied on to determine that he is no longer a fit and proper person to hold the position, such regulation is constitutionally invalid.
   
5. Gumoi claims this raised the question whether section 5(1)(f) referred to above was or is inconsistent with section 37(4)(a) of the Constitution, the right to innocence until proven guilty according to law. The second question was whether the Public Services (Management) Act 2014, and its subsidiary legislation, the Public Service (Management) Appointment of Provincial Administrators) Regulation 2014, are contrary to section 38(2) of the Constitution, by being laws that do not satisfy the section 38(2) requirement of stating the qualified rights they seek to regulate, limit or restrict, in regulating, limiting and restricting a Provincial Administrator's right to the presumption of innocence.
   
6. Gumoi filed a Notice of Motion dated 21 May 2015 pursuant to section 18(2) of the Constitution for the National Court to refer the said questions to the Supreme Court for determination as it involved the interpretation and application of sections 37(4)(a) and 38(2)(b) of the Constitution. That application was heard on 18 June 2015 and the National Court on 9 July 2015, inter alia, refused and dismissed the application. The paragraphs of Her Honour's decision in the conclusion are repeated in full here:
   

"34. This application to refer constitutional questions pursuant to Section 18 of the Constitution is misconceived. Leave to apply for judicial review has not yet been determined. In addition to that the questions to be referred do not raise a question of an interpretation of a Constitutional Law which would oblige the National Court to refer the questions to the Supreme Court and invoke their original interpretative jurisdiction under Section 18 of the Constitution. The questions posed are trivial, vexatious and irrelevant at this stage, because the matter is not properly before the National Court. Because of the fact, that leave has not been granted, the National Courts' inherent jurisdiction for judicial review has not yet been invoked. 35. The proper course in this matter would be for the plaintiff to apply for leave to seek judicial review. Order 16 of the National Court Rules require that the application to review must be made promptly and prosecuted expeditiously. Therefore, delay and in fact undue delay must be explained satisfactorily to the Court. Judicial Review entails a review of administrative decisions of public authorities, and therefore there is a need to ensure that applications are determined promptly so that those issues between the parties can be settled. 36. For the foregoing reasons, I exercise my discretion to refuse the relief sought in the plaintiff's application and dismiss the application. Costs follow the event, accordingly, the plaintiff to pay the defendants costs of the application."

7. Gumoi argues the appeal or proposed appeal raises the following questions which are also the proposed grounds of appeal, namely, whether in the National Court's findings on the evidence:
   
   1. The learned National Court Judge was wrong in finding that leave for judicial review should have been obtained first before such an application pursuant to section 18(2) of the Constitution was heard;
      
   2. The learned National Court Judge was wrong in finding that the first question to be referred as set out in Gumoi's Notice of Motion dated 21 May 2015 at paragraph 3(1) did not qualify as a constitutional question for interpretation for reasons that section 5(1)(f) is a section under the Public Service (Management)(Appointment of Provincial Administrators) Regulation 2014;
      
   100. The learned National Court Judge was wrong in finding that the second question to be referred as set out in the Appellant's Notice of Motion dated 21 May 2015 at paragraph 3(2) related to the interpretation of an Act of Parliament and that the National Court was capable of dealing with such a question;
        
   4. The learned National Court Judge was wrong in finding that the questions sought to be referred to the Supreme Court for determination did not qualify as constitutional laws questions.
      
8. Gumoi submits leave to appeal should be given for the following reasons:
   
   1. The provisions of the section 18(2) of the Constitution are in mandatory terms therefore Gumoi was not required to firstly apply for leave for judicial review since at the outset it became obvious that the Appellant's right to the presumption of innocence under section 37(4)(a) was being regulated, limited and restricted by section 5(1)(f) of Public Service (Management)(Appointment of Provincial Administrators) Regulation 2014;
      
   2. Section 5(1) (f) of Public Service (Management)(Appointment of Provincial Administrators) Regulation 2014 involved the interpretation and application of section 37(4)(a) of the Constitution since section 5(1)(f) sought to regulate, limited and restrict the Appellant's right to ultimately hold public office.
      
   100. Section 61 of the Public Service (Management) Act 2014 and section 5(1)(f) of Public Service (Management)(Appointment of Provincial Administrators) Regulation 2014 involve the interpretation and application of section 38(2)(b) of the Constitution in so far the Act does not satisfy the requirements of section 38(2)(a) and (b) of the Constitution in that it does not either express itself as being a law that is made for a purpose referred to in section 38(1)(a)(i) of the Constitution, or otherwise specifically state the right or freedom which it regulates or restricts, specifically the presumption of innocence as prescribed under section 37(4)(a) of the Constitution, and that therefore, to the extent that it is so defective, it is constitutionally invalid as being in breach of section (38(2)(a) and (b) of the Constitution.
        
9. In an affidavit filed 1 August 2015, Gumoi claims his appointment as Acting Provincial Administrator on 23 January 2013 has never been validly revoked, there being no reason for any such revocation. Further, Gumoi says to his knowledge, the Fly River Provincial Executive Council ("PEC") has not at any time furnished a list of three candidates to the Third Respondent with its preferred candidate or nominee to be recommended to the Fourth Defendant for appointment under Section 193 of the Constitution. There is no reason for the PEC to have done so under Section 18(2) of the Public Services (Management) (Employment of Provincial Administrators) Regulation of 2014. Gumoi says he is aware that the PEC convened a meeting on 8 February 2015, and that it then resolved to recommend his permanent appointment as Provincial Administrator of Western Province. Gumoi also says neither the PEC nor Governor Ati Wobiro have at any time been informed by the Second or Third Respondent of the appointment of the First Respondent. Consultation with each of these persons is a critical requirement under the Public Services (Management) Act 2014, and the Public Services (Management)(Employment of Provincial Administrators) Regulation 2014, but only if there are good reasons for the revocation of his Acting Appointment. Gumoi strongly denies that there are any such reasons justifying the revocation of his appointment.
   
10. In submissions, Gumoi's counsel seeks orders that leave be granted and that certain questions be referred to the Supreme Court pursuant to section 18(2) of the Constitution. As a single judge of the Supreme Court, I can certainly grant or refuse leave to appeal as provided by section 10(1)(a) of the Supreme Court Act. As to the referral of questions to the Supreme Court pursuant to Section 18(2) of the Constitution, that provision specifically states the power to refer may be exercised by a court or tribunal other than the Supreme Court. In this matter I am sitting as a single judge of the Supreme Court. Sitting as a single judge of the Supreme Court, I have no power to refer pursuant to section 18(2) of the Constitution.
    

The law on an application for leave to appeal

11. An application for leave to appeal is made pursuant to Section 14(3) (b) of the Supreme Court Act which provides "No appeal lies to the Supreme Court without leave of the Supreme Court ... from an interlocutory judgment made or given by the National Court." There was no dispute that leave was required. It is agreed the decision appealed was interlocutory in nature and not a final judgment.
    
12. The grant or refusal of leave is discretionary. The applicant must show that there is an arguable case, that the decision was wrong and if not reviewed or corrected on appeal, will result in substantial injustice. Sir Julius Chan v. Ombudsman Commission [1999] PNGLR 240; Boyepe Pere v. Emanuel Ningi (2003) SC711; The State v. John Talu Tekwie (2006) SC843. In some instances the applicant may be required to show exceptional circumstances and compelling reasons for leave being granted. Hii Yii Ann v. Canisius Kami Caringu (2003) SC718; Matiabe Oberia v. Chief Inspector Michael Charlie and Ors (2005) SC801. Justice Lay in the unreported judgment in the case of Oberia v Charlie (2005), SC801 said:
    

"leave to appeal is therefore unlikely to be given in circumstances where the judgment challenged may have little or no bearing on the final determination of the issues between the parties; leave should not be given where by the rules of the court there is obvious recourse for further application on the matter, nor should leave be given where the ruling is within the discretion of the Court and discloses no obvious breach of principle.

13. In the case of The Honorable Andrew Baing and the Independent State of PNG v PNG National Stevedores Pty Ltd and Bank of South Pacific Limited SC627 at page 21 the Court held "...to obtain leave to appeal an interlocutory judgment, it is not simply a matter of asserting there is an arguable case; that there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is, not only that there has been some patent error, but that the error affects a party's substantive rights or will prevent the determination of the issue. That is, there is an error in the interlocutory judgment that goes to jurisdiction".
    
14. Whether an applicant has demonstrated a prima facie case, the following factors must be considered:
    
    1. Is there an arguable or prima facie case demonstrated that the trial judge was wrong?
    2. Does the appellant have recourse in the Court below?
    100. Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on wrong principle or a mistake of fact?
    4. Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
    5. Will substantial injustice be caused by allowing the decision to stand?
    6. Has cause been shown for the trial process to be interrupted by an appeal?
       
15. Is there an arguable or prima facie case demonstrated that the trial judge was wrong? From my perusal of the decision of the National Court of 9 July 2015, Her Honor Nablu AJ refused Gumoi's request to refer the questions to the Supreme Court primarily for the reason the application for leave to review had yet to be heard and Gumoi's request in his Notice of Motion filed 21 May 2015 could only be considered once leave to review was granted. Her Honor then went further to, in essence, determine the merits of Gumoi's application by saying "the questions to be referred do not raise a question of an interpretation of a Constitutional Law which would oblige the National Court to refer the questions to the Supreme Court and invoke their original interpretative jurisdiction under Section 18 of the Constitution." Her Honor also said "The questions posed are trivial, vexatious and irrelevant at this stage, because the matter is not properly before the National Court." With respect, these findings are confusing when in the first place Her Honor rules that Gumoi must first obtain leave to review before making the application to refer the questions to the Supreme Court and then Her Honour proceeds to examine the questions posed by Gumoi for referral to the Supreme Court. It is arguable Her Honor assumed jurisdiction as if leave for judicial review had been obtained.
    
16. It is arguable the learned National Court Judge was wrong in finding that leave for judicial review should have been obtained first before such an application pursuant to section 18(2) of the Constitution was heard. I agree the provisions of section 18(2) of the Constitution are in mandatory terms and therefore it is arguable Gumoi was not required to firstly apply for leave for judicial review. Counsel for Gumoi relied on the judgment of Makail J in O'Neill and Anor v The Ombudsman Commission of Papua New Guinea and Ors OS (JR) No. 383 of 2014 where His Honor said:
    

"Once it becomes apparent to the Court, that any questions relating to the interpretation or application of any provision of a Constitutional Law arise, which are not trivial, vexatious or irrelevant, the "stage" is reached when the questions must be referred. It is not appropriate for the proceedings to proceed further before a determination by the Supreme Court of the Constitutional questions. The National Court is bound to refer the Constitutional questions and the Supreme Court is also bound to determine those questions." This was acknowledged by Nablu AJ who correctly raised the distinction that Makail J ordered the referral following the grant of leave to review. In this matter, leave to review had yet to be determined.

17. In O'Neill v Ombudsman Commission of Papua New Guinea (2015) N5857, Davani J followed the pronouncement by Makail J and said:
    

"Section 18(2) of the Constitution, is in mandatory terms, that the National Court must refer the questions sought to be referred to the Supreme Court. Section 18(2) mandates the National Court, irrespective of the nature of the proceedings before the Court, to refer any questions relating to the interpretation or application of any provision of a Constitutional Law.

Davani J went a step further to say "... it matters not whether the National Court is hearing a criminal matter, commercial matter, general civil matter or a judicial review matter."

18. Does the appellant have recourse in the Court below? As stated above, the findings are confusing when in the first place Her Honor ruled that Gumoi must first obtain leave to review before making the application to refer the questions to the Supreme Court and then Her Honour proceeded to examine the questions posed by Gumoi for referral to the Supreme Court. Although it is arguable the court assumed jurisdiction and waived the need for the grant of leave for judicial review, the appellant still has recourse in the National Court.
    
19. Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on wrong principle or a mistake of fact? It is arguable the ruling was within the discretion of the National Court but it is also arguable the exercise of discretion by the National Court was approached on a wrong principle as discussed above.
    
20. Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues? As discussed above, the decision has the potential to prevent the prompt determination of the issues raised in the proceedings. The parties may be better served by the Supreme Court being asked to firstly determine the procedural issue as to whether a referral may be made prior to the grant of leave. As Nablu AJ has commented on the merits of the application for referral, the Supreme Court could also be asked to determine the questions referred. This could be dealt with in the same hearing to avoid delay and further costs to the parties.
    
    21. Will substantial injustice be caused by allowing the decision to stand?

My discussion in the preceding paragraphs demonstrates injustice will be caused in allowing the decision of the National Court to stand.

22. Has cause been shown for the trial process to be interrupted by an appeal? Yes.
    
23. The application for leave to appeal the decision of the National Court in proceedings OS (JR) No. 240 of 2015 made on 9 July 2015, filed on 30 July 2015, is granted.
    
24. The Application for Stay filed 30 July 2015 is adjourned for directions on 5 October 2015.
    

Judgment accordingly:

________________________________________________________________
Posman Kua Aisi Lawyers: Lawyers for the Appellant
Centurian Lawyers: Lawyers for the First Respondent
Office of the Solicitor General: Lawyers for the Second to the Fifth Respondents