Raho Hitolo v Ila Geno, Chief Ombudsman, Ombudsman Commission of Papua New Guinea, Peter Masi, Ombudsman, Ombudsman Commission of Papua New Guinea and Chronox Manek, The Public Prosecutor and The Hon Justices Kandakasi (Chairman), Davani And Lenalia as Members of The Constitutional Office–Holders Rights Tribunal, In The Matter of Allegations of Misconduct In Office Against Raho Hitlolo (2004) N2700

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 09 November 2004
• Court: National Court
• Citation: (2004) N2700
• Year: 2004
• Judgement Number: N2700

Full Title: Raho Hitolo v Ila Geno, Chief Ombudsman, Ombudsman Commission of Papua New Guinea, Peter Masi, Ombudsman, Ombudsman Commission of Papua New Guinea and Chronox Manek, The Public Prosecutor and The Hon Justices Kandakasi (Chairman), Davani And Lenalia as Members of The Constitutional Office–Holders Rights Tribunal, In The Matter of Allegations of Misconduct In Office Against Raho Hitlolo (2004) N2700

National Court: Injia DCJ

Judgment Delivered: 9 November 2004

N2700

PAPUA NEW GUINEA

[IN HE NATIONAL COURT OF JUSTICE]

OS 571OF 2004

Between:

RAHO HITOLO

-Plaintiff-

And:

ILA GENO, CHIEF OMBUDSMAN,

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

-1st Defendant-

And:

PETER MASI, OMBUDSMAN

-2nd Defendant-

And:

OMBUDSMAN COMMISSION

OF PAPUA NEW GUINEA

-3rd Defendant-

And:

CHRONOX MANEK,

THE PUBLIC PROSECUTOR

4th Defendant-

And:

THE HON. JUSTICES KANDAKASI (CHAIRMAN),

DAVANI AND LENALIA as MEMBERS OF THE

CONSTITUTIONAL OFFICE-HOLDERS RIGHTS

TRIBUNAL,IN THE MATTER OF ALLEGATIONS

OF MISCONDUCT IN OFFICE AGAINST

RAHO HITLOLO

5th Defendant-

Waigani : Injia, DCJ

2004 : 9th November

Judicial Review – Leave application – Administrative decision – Ombudsman Commission’s decision to refer Member of Commission for misuse of Commission’s motor vehicle – Grounds – Conflict of interest and perceived bias – Failure to appoint independent investigators under S.19 of Organic Law on Duties and responsibilities of Leadership, to avoid conflict of interest or bias – No evidence to show both Commission and Leader considered option under s.19 – Grounds not arguable - Leave refused.

Judicial Review – Practice and procedure – Leave application – Undue delay – Appropriateness of decision-making body – Appropriateness of relief against correct body – Commission’s decision to refer leader to Public Prosecutor for prosecution – Public Prosecutor’s independent decision to refer leader to Leadership Tribunal appointed by Chief Justice – Leadership Tribunal appointed and investigations commenced – Inappropriate to challenge decision of Ombudsman Commission – Correct decision to challenge is Public Prosecutor’s decision – Two months delay albeit made within 4 months period under Order 16 rule 4(2) of the National Court Rules, amounted to undue delay in the circumstances – Leave refused.

Cases cited in the judgment:

Nilkare v Ombudsman Commission SC 498 (1996).

Ombudsman Commission v Dennis Donohoe [1985] PNGLR 348

Peter Yama v Ombudsman Commission SC 748 (2004).

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

L. Henao for the Applicant

M Pitoi for the Respondent

9th November 2004

INJIA, DCJ: This is an application for leave for judicial review made under Order 16 r 3 of the National Court Rules (NCR). The application is supported by the Applicant’s affidavit sworn on 11th October 2004.

The Attorney General was served the documents pursuant to NCR, O 16 r 3(3) but there was no appearance. Although an application for leave to apply for judicial review is made ex parte, I granted leave to the First, Second and Third Defendants (hereinafter referred to as the “Commission) to be heard as the subject matter relates to an internal matter involving a member of the Commission. The Third Respondent has filed a Notice of Appearance, Notice of Intention to Defend, an affidavit of the First Respondent and an affidavit of Mr Steven Mokis who is the Secretary to the Commission. The Commission contests the application.

The main relief to be sought if leave is granted as set out in the verified Statement filed pursuant to NCR, O16 r 3 and they are are:

“(a) An order that the finding of a prima facie case by the First, Second and Third Defendants made on or about 24th June 2004 against the Plaintiff in respect of allegations of misconduct in office by the Plaintiff be quashed;

(b) An order that the referral of the Plaintiff by the First, Second and Third Defendants to the Fourth Defendant on 24th June 2004 be quashed;

(c) An order to restrain the Fifth Defendant as members of the Constitutional Office-Holders Rights Tribunal from continuing to hear and determine the allegations of misconduct in office against the Plaintiff;

(d) An order in the nature of mandamus to compel the First, Second and Third Defendants to appoint one or more Constitutional Office-Holders pursuant to Section 19 of the Organic Law on Duties and Responsibilities of Leadership to carry out an examination or conduct an investigation of the Plaintiff in respect of the use of the Third Defendant’s vehicle BBF-566 from the 6th to 26th February 2004.”

The two proposed grounds of review to be sought at the full hearing if leave is granted, as set out in the verified Statement, are:

“(a) That the First and Second Defendants had conflicts of interest when they determined that there was a prima facie case against the Plaintiff for the following reasons:

(i) The First Defendant and the Third Defendant’s Secretary, Steven Mokis gave approval for the use of the vehicle BBF-566 by the Plaintiff.

(ii) The Second Defendant was privy to discussions with the Plaintiff and was aware of the approval for the use of the vehicle by the Plaintiff.

(iii) The First, Second, Third Defendants and Mr Mokis by their conduct or omission permitted the Plaintiff use of the vehicle during the period in question being 6th to the 26th February 2004 inclusive, in that neither specific terms of the use of the vehicle after the 6th February 2004, and by reasons thereof the Plaintiff was led to believe that it was an administrative decision hence, his use of the vehicle was in order.

(c) The First, Second and Third Defendants failed to exercise their discretion under Section 19 of the Organic Law on Duties and Responsibilities of Leaders or in the alternative if they did, the discretion was exercised unreasonably, by not having one or more constitutional officer holders appointed to carry out an independent examination or investigation and to compile a report on the results of its examination or investigation, when they were unable to or ought to have decided that they were unable to deal with the matter on their own.”

The Applicant only challenges the Commission’s decision to refer him to the Public Prosecutor for prosecution. The Applicant does not challenge the decision of the Public Prosecutor (Fourth Defendant) to refer him to the Leadership Tribunal (appointed by the Chief Justice) and the Leadership Tribunal’s (Fifth Defendants) assumption of jurisdiction to deal with the matter referred to it by the Public Prosecutor. The Applicant also does not raise any other ground in relation to excess of jurisdiction against the Commission, apart from the grounds relating to breach of principles of natural justice under the principles enunciated in Ombudsman Commission v Dennis Donohoe [1985] PNGLR 348 and Nilkare v Ombudsman Commission SC 498 (1996).

The short facts of the case are that the Applicant was an employee of the Commission between 1990 – 1998. He held the position of Director of the Commission’s Leadership Division and the Acting Secretary to the Commission. On 14th December 1998, he was appointed a Member of the Commission for a period of 6 years. His term will expire on 14th December 2004. That is some 35 days, from today.

On 18th March 2004, the Applicant was given what is called right to be heard notice by the Commission over allegations of misconduct in office in the use of the Commission’s motor vehicle registration number BBF-566. On 6th April 2004, the Applicant responded in writing. On 24th June, the Commission referred him to the Public Prosecutor under S.27(1) of the Organic Law on Duties and Responsibilities of Leadership (OLDRL). On 16th August 2004, the Public Prosecutor wrote to the Chief Justice requesting him to appoint a Leadership Tribunal, pursuant to S.29(1) of the Constitution and S.17(d), 20(4) and 27(1) of the OLDRL. The Public Prosecutor has kindly furnished to me, upon my request, a copy of his letter to the Chief Justice. A Tribunal comprising of the Fifth Defendants was constituted and it commenced its preliminary hearing in October. I am informed that the Statement of Reasons prepared by the Commission and charges of misconduct in office prepared by the Public Prosecutor were presented to the Tribunal on 4th October 2004.

On 4th October, 2004, the Applicant was suspended from office pursuant to S.29 of the OLDRL. On 12th October he filed these proceedings and applied, ex parte, for interim injunctive orders. I granted interim orders injuncting the Tribunal from proceeding with the matter until the leave application was determined.

The principles on grant of leave are settled. It is in the court’s discretion. In order for the discretion to be exercised in the Applicant’s favour, the Applicant must show he or she has sufficient interest or locus standi to bring the application, the application is brought without delay, other administrative or other statutory remedies for appeal or review for addressing have been exhausted or unavailable and the proposed grounds of review are arguable.

Full arguments were made by both counsel on these requirements for leave were made. Of these, the Applicant’s locus standi is not in issue. The Applicant is directly affected by the Commission’s decision to refer him.

On delay, under NCR, O 16 R 4(2,) the period...