Hon Belden Namah v a Tribunal

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 05 November 2015
• Citation: (2015) N6108
• Court: National Court
• Year: 2015
• Judgement Number: N6108

Full : OS (HR) No 8 OF 2015; Hon Belden Namah MP, Member for Vanimo Green Open v a Tribunal Comprising Hon Justice Goodwin Poole, Senior Magistrate Mark Selefkariu and Senior Magistrate Ernest Wilmot, and Pondros Kaluwin, Public Prosecutor, Ombudsman Commission of Papua New Guinea (2015) N6108

National Court: Cannings J

Judgment Delivered: 5 November 2015

N6108

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 8 0F 2015

HON BELDEN NAMAH MP,

MEMBER FOR VANIMO GREEN OPEN

Plaintiff

V

A TRIBUNAL COMPRISING HON JUSTICE GOODWIN POOLE, SENIOR MAGISTRATE MARK SELEFKARIU AND

SENIOR MAGISTRATE ERNEST WILMOT

First Defendants

PONDROS KALUWIN, PUBLIC PROSECUTOR

Second Defendant

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Third Defendant

Waigani: Cannings J

2015: 4, 5 November

INJUNCTIONS – INTERIM INJUNCTIONS – orders sought to restrain members of a leadership tribunal from convening until determination of constitutional questions by Supreme Court – relevant considerations to take into account when determining whether interim injunction should be granted.

CONSTITUTIONAL LAW – jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of Constitutional Laws: Constitution, Section 18 – whether a leadership tribunal obliged by Constitution, Section 18(2) to refer constitutional questions to Supreme Court.

The plaintiff is a member of the Parliament subject to the Leadership Code. The Ombudsman Commission conducted an investigation into alleged misconduct in office by the plaintiff and referred him to the Public Prosecutor for prosecution. The Public Prosecutor requested the Chief Justice to appoint a leadership tribunal to inquire into the matter. The Chief Justice appointed a tribunal, comprised of the first defendants. The tribunal convened and, prior to the referral to it by the Public Prosecutor of the matter referred to him by the Ombudsman Commission, the plaintiff raised a number of constitutional questions regarding the appointment of the tribunal, which, he argued, required the tribunal to refer to the Supreme Court under Section 18(2) of the Constitution. The tribunal did not refer any such questions to the Supreme Court. It adjourned its proceedings to the following week to amongst other things receive the referral to it from the Public Prosecutor. The plaintiff then commenced proceedings by originating summons in the National Court, seeking: (a) a declaration that the tribunal had failed in its duty to refer constitutional questions to the Supreme Court, (b) an order that the National Court refers the constitutional questions to the Supreme Court, (c) an injunction to restrain the tribunal from conducting any proceedings, (d) a declaration that the tribunal’s failure to discharge its duty to refer the constitutional questions to the Supreme Court breaches the plaintiff’s right to the full protection of the law under Section 37(1) of the Constitution and (e) a declaration that the tribunal’s failure to refer the constitutional questions is a proscribed act under Section 41 of the Constitution.

Having commenced those proceedings, the plaintiff applied by notice of motion to the National Court for an injunction to restrain the tribunal from convening until such time as the Supreme Court has determined the constitutional questions. This is the National Court’s ruling on that motion.

Held:

(1) The Constitution, by Section 18(1), confers exclusive jurisdiction on the Supreme Court as to any question relating to interpretation or application of a provision of a Constitutional Law, and, by Section 18(2) obliges a leadership tribunal, whenever any such questions arise before it, to refer the question to the Supreme Court, unless the question is trivial, vexatious or irrelevant.

(2) A tribunal, in an appropriate case, will be subject to a duty to refer constitutional questions to the Supreme Court. If it is proven that it has failed to comply with that duty, the National Court could grant the sort of relief sought in the originating summons.

(3) In the present case, there was no arguable case of a failure to comply with the duty under Section 18(2) as there was insufficient evidence that constitutional questions had ‘arisen’ in the tribunal. There was no transcript of the tribunal’s proceedings and no other official record of how and in what circumstances and form the plaintiff applied to the tribunal to have constitutional questions referred to the Supreme Court.

(4) Further, there was insufficient evidence that the tribunal had been put in a position where it was required to make a decision on such an application or that it had refused such an application or decided not to refer any constitutional questions to the Supreme Court.

(5) The absence of an arguable case meant there were not at this stage any serious issues to be tried in the National Court; and in these circumstances an interim injunction was not justified.

(6) All relief sought in the notice of motion was refused and a prior interim injunction was dissolved.

Cases cited

The following cases are cited in the judgment:

Alois Kingsley Golu v Regett Marum (2013) N5104

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

Haiveta v Wingti (No 1) [1994] PNGLR 160

Isaac Lupari v Sir Michael Somare (2008) N3476

Lowa v Akipe [1992] PNGLR 399

Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60

Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479

SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405

SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379

NOTICE OF MOTION

This was an application for an interim injunction to restrain the members of a leadership tribunal from convening the tribunal until such time as the Supreme Court has determined constitutional questions regarding the tribunal’s jurisdiction.

Counsel

G J Sheppard & G Purvey, for the Plaintiff

L P Kandi, for the first and Second Defendants

M Efi, for the Third Defendant

5th November, 2015

1. CANNINGS J: The plaintiff, the Honourable Belden Namah MP, applies by notice of motion for an interim injunction to restrain the members of a leadership tribunal from convening until such time as the Supreme Court has determined constitutional questions regarding the tribunal’s jurisdiction. The tribunal is constituted by the first defendants. It has been appointed by the Chief Justice, Chief Sir Salamo Injia Kt GCL, to inquire into and determine allegations of misconduct in office against the plaintiff. This is a ruling on the plaintiff’s application made by an amended notice of motion filed on 3 November 2015.

BACKGROUND

2. The plaintiff is a member of the Parliament subject to the Leadership Code. The Ombudsman Commission conducted an investigation into alleged misconduct in office by the plaintiff. The following events then occurred during 2015.

3. On 13 April the Ombudsman Commission referred him to the Public Prosecutor for prosecution.

4. On 14 August the Public Prosecutor requested the Chief Justice to appoint a leadership tribunal to inquire into the matter.

5. On 9 October the Chief Justice appointed the tribunal, comprised of the first defendants.

6. On 26 October the tribunal convened. Prior to the referral to it by the Public Prosecutor of the matter referred to him by the Ombudsman Commission, the plaintiff, through his counsel Mr Sheppard, raised a number of constitutional questions regarding the appointment of the tribunal. It was evidently argued that the fact that such questions had arisen, required the tribunal to refer those questions to the Supreme Court under Section 18(2) of the Constitution, which states:

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

7. The tribunal evidently adjourned to the next day to state its position on the constitutional questions. I keep saying ‘evidently’ as there is, before me, no transcript or any other official record of what happened in the tribunal. I am relying on a supporting affidavit by the plaintiff, which explains in rather general terms what happened, the contents of which have not been objected to by the defendants.

8. On 27 October the tribunal evidently reconvened and indicated that it was not referring any such questions to the Supreme Court and adjourned its proceedings to 3 November to amongst other things receive the referral to it from the Public Prosecutor.

9. On 28 October the plaintiff commenced the present proceedings by originating summons in the National Court. The principal causes of action, as I understand them, that he wishes to prosecute, are:

First, that the tribunal...