Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Pheobe Sangetari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC1118

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Kirriwom and Kandakasi, JJ.
• Judgment Date: 01 July 2011
• Court: Supreme Court
• Citation: (2011) SC1118
• Docket Number: SCOS NO 02 OF 2011
• Year: 2011
• Judgement Number: SC1118

Full Title: SCOS NO 02 OF 2011; Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero and Pheobe Sangetari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC1118

Supreme Court: Salika DCJ, Kirriwom and Kandakasi, JJ.

Judgment Delivered: 1 July 2011

SC1118

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCOS NO 02 OF 2011

BETWEEN:

GRAND CHIEF SIR MICHAEL THOMAS SOMARE

- Applicant

AND:

CHRONOX MANEK, JOHN NERO and PHEOBE SANGETARI as OMBUDSMAN COMMISSIONERS and the OMBUDSMAN COMMISSION

- Respondent

Waigani: Salika DCJ, Kirriwom and Kandakasi, JJ.

2011: 28th April

2011: 1st July

CONSTITUTIONAL LAW – Original Jurisdiction of the Supreme Court under s. 18 (1) of the Constitution – Exclusive jurisdiction on question of interpretation and application of a constitutional law – Subject to the Constitution - Two context giving rise to such question – Factual and statutory - Where factual - Facts must be first established – Authorised persons to bring such questions – Authorised persons – Section 19(3) and s.18(2) of Constitution – Constitutional basis for judgments authorizing others not clear – National Court specifically authorised to enforce the Constitution under s. 22 and s. 23 of the Constitution - Court of first instance – Application of constitutional law jurisdiction vested in National Court.

CONSTITUTIONAL LAW - Effect and meaning of s. 28 (1) of the OLDRL - A leader who is referred to an appropriate tribunal is automatically suspended from duty form the date of referral to a leadership tribunal – Hon Patrick Pruaitch, MP v. Chronox Manek (2010) SC1052 affirmed in part - Hon Patrick Pruaitch, MP v. Chronox Manek (2010) SC1093 not followed.

CONSTITUTIONAL LAW – Section 217 (6) of the Constitution – Ombudsman Commission decisions immune from any challenge except by judicial review only on grounds of excess of jurisdiction – Correct forum for judicial review within the parameters of s. 217 (6) – National Court by reasons of s. 155 (2) and (3) and s. 22 and 23 of the Constitution – Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1093 not followed.

PRACTICE & PROCEDURE – Original jurisdiction of the Supreme Court - Case brought under s. 18(1) of the Constitution – Plaintiff must plead with particularity – Pleadings must specify question (s) of interpretation and application of a constitutional law and the factual circumstances giving rise to the question(s) - Failure may result in denial of claim - Where question is dependent on facts, the facts must be first established in the National Court or a lower tribunal – Premature to bring a question of interpretation and application of a constitutional law to the Supreme Court without establishing facts.

PRACTICE & PROCEDURE – Abuse of Court process – Correct process and forum to challenge decisions of the Ombudsman Commission – Judicial review on grounds of excess of jurisdiction pursuant to s. 217 (6) of the Constitution – Proceedings commenced in any other way is unauthorized and amounts to abuse of process of the Court - Hon Patrick Pruaitch, MP v. Chronox Manek (2010) SC1093 not followed.

PRACTICE & PROCEDURE – Applications for interim injunctions - Application seeking to injuct Ombudsman’s investigatory functions under the Constitution and other legally authorised investigations such as police investigations – Nature of such process - Preliminary only with no final determinations of one’s rights or interest – Final decisions at leadership tribunal for any leadership breach and the Court in respect of criminal cases and police investigations –Independence of the Ombudsman and other independent investigating authorities such as the Police considered – Against good order, administration and good governance for superior courts to intervene and prevent such process – Application for such reliefs amounts to an abuse of the process of the Court – All such applications should be declined without exception.

Papua New Guinean Cases Cited:

William Powi v Southern Highlands Provincial Government (2006) SC844

SCR No. 3 of 2005: Reference by The Ombudsman Commission of Papua New Guinea (2008) SC1011.

The National Executive Council, the Attorney-General and Luke Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264

Anderson Agiru v. Electoral Commission and The State (2002) SC687

Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited (2007) N3144

Telikom PNG limited v. The Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906.

Hon. Patrick Pruaitch MP v. Chronox Manek, John Nero & Phoebe Sengatari as Ombudsman Commission & Ors (2010) SC1093

NTN v. Board of the Post and Telecommunications Corp [1987] PNGLR 70

Ila Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22

Re Raho Hitolo, Member of the Ombudsman Commission (2004) N2745.

Rimbink Pato v. Anthony Manjin [1999] PNGLR 6

Simon Ketan v. Lawyers Statutory Committee & Anor (2001) N2290

Pius Nui v. Tanda (2004) N2765

Bank of Papua New Guinea and Wilson Kamit v. Marshall Cooke QC & Ors (2003) N2369

Bernard Hagoria v. Ombudsman Commission (2003) N2400

Dan Kakaraya v. Ombudsman Commission (2003) N2478

Tasman Australia Airlines Pty Ltd v. Andrew Ogil, Director of Civil Aviation Authority of Papua New Guinea (2004) N2711

Grand Chief Sir Michael Somare v. Ila Geno (2008) N3406.

Zachary Gelu v. Sir Michael Somare MP (2008) N3526

Tkatchenko v. Dessy Magaru (2000) N1956

Jimmy Mostata Maladina v. Posain Poloh (2004) N2568

Sakawar Kasieng v. Andrew Baigry (2004) N2562

State v. Tanedo [1975] PNGLR 395.

Diro v. Ombudsman Commission of Papua New Guinea (1991) N1385

SCR No 2 of 1982; Re Opai Kunangel Amin [1991] PNGLR 1

Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052

Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1093

Raz v. Matane [1985] PNGLR 329

Patterson Lowa, Minister for Minerals and Energy and Others v. Wapula Akipe and Others [1991] PNGLR 265.

The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694

Kaseng v. Namaliu [1995] PNGLR 481

Momis and Others v. NEC and Others (1999) SC 626

MRDC v. Ombudsman Commission (2008) SC931

Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363

Madiu Andrew v. Mineral Resources Development Company Ltd, & Ors (2004) N2601

SC Review No. 5 of 1988:Kasap and Yama [1988-89] PNGLR 197

Malipu Balakau v. Paul Torato [1983] PNGLR 242

Kekedo v. Burns Philip & Ors [1988-89] PNGLR 122

Chan v. Ombudsman Commission [1998] PNGLR 171

Ombudsman Commission v. Yama (2004) SC747

Ombudsman Commission of Papua New Guinea v. Dennis Donohoe [1985] PNGLR 348

Honourable Patrick Pruaitch MP v. Chronox Manek & Ors (2009) N3903

Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20

John Mua Nilkare v.Ombudsman Commission [1999] PNGLR 333

Julius Chan v. Makena Geno & Anor [1988] PNGLR 43

Gerard Sigulogo v. Leadership Tribunal (1990) N829

Overseas Cases Cited:

Ex parte Cousens; Re Blacket and Anor (1947) 47 SR (NSW) 145

Moran v. Lloyds (1981) 1 Lloyds Reports 423

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617

Counsel

Mr.V. Narokobi, for the Applicant/Respondent

Mr. I Molly and Mr. K. Kua, for the Respondent/Applicant

01st July, 2011

1. BY THE COURT: Introduction: Grand Chief, Sir Michael Thomas Somare (Sir Michael) filed these proceedings seeking to invoke this Court’s original jurisdiction on a question of interpretation and application of a constitutional law.

2. By application filed on 05th March 2011, the Defendant/Applicant (the Ombudsman) is applying to dismiss these proceedings on grounds of abuse of the process of the Court in that:

(1) The issues raised here were raised or should have been raised in earlier concluded proceedings;

(2) These issues should have been raised in the leadership tribunal which has since concluded its hearing and determinations;

(3) No question of interpretation and application of a constitutional law within the meaning of s. 18(1) of the Constitution arises;

(4) The issues raised here could be sufficiently dealt with by judicial review under O.16 r. 1 of the National Court Rules 1984, (NCR);

(5) These proceedings serve no utility since the process of referral of a leader to the Public Prosecutor (PP) and the Chief Justice for the appointment of a leadership tribunal and such a tribunal hearing and determining charges of breaches of certain provisions of the Organic Law on Duties Responsibilities of Leadership (OLDRL) has been concluded with no appeal or review being filed and pursed.

3. On the other hand, Sir Michael through learned counsel argues that, the questions he is raising in these proceedings are...