Peter Ipu Peipul v Sheehan J, Mr Orim Karapo and Mr Iova Geita (Constituting The Leadership Tribunal), The Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2001) N2096

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 25 May 2001
• Court: National Court
• Citation: (2001) N2096
• Docket Number: In the Matter of a Leadership Tribunal Appointed under Provisions of Section 27(7)(e) of The Organic Law on The Duties and Responsibilities of Leadership and In the Matter of Certain Cases of Alleged Misconduct in Office by Honourable Peter Ipu Peipul, MP
• Year: 2001
• Judgement Number: N2096

Full Title: In the Matter of a Leadership Tribunal Appointed under Provisions of Section 27(7)(e) of The Organic Law on The Duties and Responsibilities of Leadership and In the Matter of Certain Cases of Alleged Misconduct in Office by Honourable Peter Ipu Peipul, MP; Peter Ipu Peipul v Sheehan J, Mr Ori Karapo and Mr Iova Geita (Constituting The Leadership Tribunal), The Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2001) N2096

National Court: Kandakasi J

Judgment Delivered: 25 May 2001

N2096

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O. S. 272 of 2001

IN THE MATTER OF

A LEADERSHIP TRIBUNAL APPOINTED UNDER

PROVISIONS OF SECTION 27(7)(e) OF THE ORGANIC LAW

ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND IN THE MATTER OF CERTAIN CASES

OF ALLEGED MISCOUDUCT IN OFFICE BY

HONONOURABLE PETER IPU PEIPUL, MP

BETWEEN

PETER IPU PEIPUL

Plaintiff

AND

SHEEHAN J., MR. ORI KARAPO, AND

MR. IOVA GEITA (constituting the

Leadership Tribunal)

First Defendant

AND

THE OMBUDSMAN COMMISSION OF

PAPUA NEW GUINEA

Second Defendant

AND

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Third Defendant

Waigani: Kandakasi J

2001: 16 & 25 May

JUDICIAL REVIEW — Decision of a leadership tribunal — Application for leave for judicial review of — Only issue for determination whether arguable case shown — Issues not raised at tribunal do not present arguable case — Failure to demonstrate arguable case on other grounds — Application refused.

WORDS & PHRASES — "personal gain" s. 27(2) of the Constitution — Fair and liberal meaning to be given so as to give effect to intention and or purpose of the legislation — means all manner of gain howsoever remote whether tangible or intangible

Cases Cited:

James Eki Mopio [1981] PNGLR 416.

John Joe Nemambo v. Peter Peipul and The State SC475

Kekedo v. Burnsphilip [1988-89] PNGLR 122

Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617

Ila Geno and Others v. The State [1993] PNGLR 22

Leto Darius v. Commissioner for Police and The State N2046

Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596

Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370

Inakambi Singorom v. John Kalaut [1985] PNGLR 238

PLAR No. 1 of 1980 [1980] PNGLR 326

Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 125

SCR No. 1 of 1978: Re Ombudsman Commission Investigations of the Public Prosecutor [1978] PNGLR 345

Counsels:

Mr. A. Jerewai for the Plaintiff

Mr. J. Kawi for the First and Third defendants

Mr. D. Cannings for the Third Defendant

25th May 2001

KANDAKASI, J: The Plaintiff is seeking leave of this court for a review of a decision of the first defendant (the tribunal), which found him guilty of certain misconduct in office as a leader and recommended his dismissal from office respectively on 10th and 19th of April 2001. The alleged misconducts centre on the appointment of the Plaintiff's blood brother, Moses Tawa to the important Constitutional office of Chairman/member of the Public Services Commission.

Parties Contentions

The plaintiff advances six grounds, which he claims, present an arguable case warranting a grant of leave for judicial review. Firstly, he contends that there is an error of law on the face of the record. This is so, he says, because the tribunal did not properly interpret and apply the provisions of s. 27(1)(a), (b), (c), (d); 27(2); 27(5) and (6) of the Constitution and ss. 6(1), (2) and (3) and 15 of the Organic Law on Duties and Responsibilities of Leadership. He argues this denied him of the benefit of a finding that he did not personally gain from appointing his own blood brother.

Secondly, following on from the first ground, the Plaintiff contends that, because the tribunal did not properly interpret and apply the above provisions, it lacked or acted in excess of jurisdiction.

His third ground is centred on the Wednesbury principle. He argues that, the tribunal erred in failing to take into account the fact that (1), he took steps to get his bothers appointment revoked which was done (2), proper procedures were then followed to reappoint his brother and (3), his letter of 29th December 1998 to the Ombudsman Commission. He also argues that, the tribunal erred in considering a letter dated 30th December 1998 from the Ombudsman to him as advice to him.

Fourthly, the Plaintiff argues that the tribunal was bias. He claims this on the basis that, the Chief Ombudsman was the former Chairman of the Department of Personal Management and he had a vested interest in the outcome of the matter. However, nothing is directly claimed against the tribunal. I therefore, struck out this ground as having no good basis by reason of which it was vexatious and frivolous.

The plaintiff's, fifth ground concerns the standard of proof. This ground is based on the Supreme Court decision in James Eki Mopio [1981] PNGLR 416. He argues that the tribunal failed to apply the standard of proof set by that case and as such, the tribunal fell into error.

Finally, the Plaintiff claims that the decision to recommend his dismissal from office for his penalty was too severe. He claims that, his misconducts as found by the tribunal were not serious enough to warrant such a penalty. Therefore, he says the tribunal fell into error.

The Defendants contend that, the issues in the first and second grounds were not raised before the tribunal. Counsel represented the plaintiff at the tribunal hearing and despite that, he failed to raise these issues. Accordingly, the tribunal could not and did not err in not giving any consideration to a matter that was not raised and properly before it for determination. Therefore, they argue that, these grounds are misconceived. In any case, they argue that, if the tribunal did embark upon an interpretation and application of the provisions in question, the Plaintiff could have still been caught and found guilty.

On the third ground, the Defendant's argue that, the tribunal made no error because it took into account all the factors that needed to be taken into account and did not take into account any irrelevant factor.

As for the fourth ground, the Defendants endorse the decision to have it struck out because the allegation of bias is not directed against the tribunal or any of its members.

Regarding the fifth ground, the Defendants contend that the tribunal reminded itself at the very outset of the standard to be applied in the assessment of the evidence presented before it. They further argue that, the tribunal was however, satisfied as to the guilt of the Plaintiff on the much higher standard of proof beyond any reasonable doubt.

Finally, in relation to the severity of penalty, the Defendants argue that, the offences with which the plaintiff was charged and eventually found guilty of were serious. The tribunal took into account all the relevant factors before arriving at its decision to recommend a dismissal of the plaintiff. Accordingly, the tribunal did not err on this score or on any of the other grounds. Consequently, they argue that, there is no arguable case justifying a grant of leave for review.

Issues for determination

The parties agreed at the outset that, the only issue for determination by this Court is, whether the plaintiff has an arguable case to warrant a grant of leave for judicial review of the tribunal's decision. To determine that issue, it will be necessary to consider whether, upon a quick perusal of the material constituting this application, a prima facie case of all or any of the errors alleged is disclosed. If that issue is answered in the affirmative for any or all of the grounds, it will led to an answer in the affirmative the only issue for determination.

The Background/Facts

The relevant facts are these. On about 7th August 2000, the Ombudsman Commission referred the Plaintiff to the Public Prosecutor on five (5) counts of alleged misconducts in office. The allegations arose from an appointment, revocation and reappointment of the Plaintiff's own blood brother, Mr. Moses Tawa to the position of Chairman/member of the Public Services Commission. On 31st January 2001, the Public Prosecutor referred the plaintiff to the Chief Justice to appoint a tribunal to hear into the allegations and the tribunal was appointed.

The...