Sam Koim v Hon. Peter O'Neil
Jurisdiction | Papua New Guinea |
Citation | (2014) N5694 |
Date | 28 July 2014 |
Court | National Court |
Year | 2014 |
Full : OS (JR) No. 444 OF 2014; Sam Koim, the Chairman of Task Force Sweep v Hon. Peter O'Neil - as Prime Minister & Chairman of the National Executive Council and the National Executive Council and Hon. Ano Pala, Minister for Justice & Attorney General and The Independent State of Papua New Guinea (2014) N5694
National Court: Gavara-Nanu, J
Judgment Delivered: 28 July 2014
PRACTICE AND PROCEDURE—Judicial Review—Stay—National Court Rules; O16 r3 (8) (a)—Principles relating to Stay discussed.
PRACTICE AND PROCEDURE—Judicial Review—Pleadings—National Court Rules; O16 r3 (2) (a) and r13 (2)—Motions (Amendment) Rules, 2005 r9—Requirements of the rules—Substantial compliance with the rules—National Court Rules; O1 r7 and r8—Amendments to processes—Direction by the Court to amend processes—Whether proceedings incompetent and an abuse of process—Amendments to processes not prejudicial to the respondents—Non-compliance amounting to procedural irregularities—Proceedings not incompetent or an abuse of process.
Cases cited:
Papua New Guinea cases
Agmark Pacific Limited v. Cocoa Board of Papua New Guinea (2012) N4902
Alois Kingsley Golu v. National Executive Council (2011) N4425
Asakusa v. Kumbakor (2008) N3303
Bougainville Copper Ltd v. Commissioner General of Internal Revenue (2009) SC1020
Dr Allan Marat and The State v. Hanjung Power Ltd SC1357
Duma v. Meier (2007) SC898
Halifax Group of Companies Ltd v. Papua New Guinea Land Board (2012) SC1150
Gabriel Yer, Secretary for Department of Finance v. Peter Yama (2009) SC990
Gabriel Yer, Secretary for Department of Finance v. Peter Yama [2009] PGSC 28; SC996
Gary McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279
Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (OS JR. 64 of 2014) 17 March, 2014
In re. Constitution Section 19 (1)—Special Reference by Dr Allan Marat [2012] PGSC 20
Isaac Lupari v. Sir Michael Somare and Ors N3476
Isaac Lupari v. Sir Michael Somare and Ors SC1071
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Les Curlewis and Ors v. David Yuapa (2008) SC1274
Luke Yaluma v. The State (2010) N4088
Markscal Limited v. Mineral Resources Development Co. Ltd [1996] PNGLR 419
Momis v. Attorney General [2000] PNGC 15; N1951
National Capital District Commission v. Yama Security Services Pty Ltd [2003] PGSC 7; SC707
PAC LNG International Ltd and Ors v. SPI (208) Limited and Ors (OS. JR. 177 of 2014) 22 April, 2014
Peter Makeng v. Timbers (PNG) Ltd N3317
Ramu Nico Management (MCC) Ltd v. Eddie Tarsie (2010) SC1075
Robison v. National Airlines Commission [1983] PNGLR 476
The Honourable Peter O’Neil v. Ombudsman Commission of Papua New Guinea N5642
The Independent State of Papua New Guinea v. Phillip Kapal [1987] PNGLR 417
Tiensten v. Koim [2011] PGNC 127; N4420
Vincent Kaupa v. Simon Poraituk (2008) SC955
Water Board v. National Capital District Interim Commission (1990) N864
Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831
Overseas Cases cited:
Chief Constable of North Wales Police v. Evans [1982] 1 W.L.R 1155
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] 2 W.L.R 722
R.v Secretary of State for Education and Science, exp. Avon County Council [1991] 2 All E.R 282
1. GAVARA-NANU J.: This is an application by the plaintiff to stay two decisions of the National Executive Council (NEC) made on 18 and 24 June, 2014 respectively. The decision of 18 June, 2014 which is No. 191 of 2014, abolished the Investigation Task Force Sweep (ITFS) chaired by the plaintiff with immediate effect and the decision of 24 June, 2014, No. 196 of 2014, established the Interim Office of Anti-Corruption (IOAC) which was to replace the ITFS. In the 24 June, 2014, decision the ITFS was also directed to transfer all its working files to the new IOAC. Former Judge Graham Ellis was appointed to head the IOAC. The IOAC was to operate initially for six months with a possibility of its term being extended.
2. The brief background of how the ITFS became established and how it has been working up to its abolition are these: on 11 August, 2011 the NEC by its decision No. NG03 of 2011, set up an investigation team to investigate corrupt deals allegedly committed within the Department of National Planning and Monitoring. The team was also tasked to investigate the controversial K125m funding for Kokopo Community Projects. The same NEC decision also established a multi-agency investigation team comprised of public servants, key technical advisors and members of the Royal Papua New Guinea Constabulary (Police Force). This team later became commonly known as the Investigation Task Force Sweep (ITFS), with the plaintiff as its Chairman. The decision by the NEC to appoint the ITFS was following a Policy Submission made to the NEC which recommended setting up of a National Anti-Corruption Alliance which would fight corruption at all levels of public and private sectors. The ITFS had its Terms of Reference which defined the scope of its work.
3. In the same meeting on 11 August, 2011, besides approving ITFS’ Terms of Reference the NEC also appointed members of ITFS.
4. The following people were appointed as ITFS members:
1. Chairman—Mr. Sam Koim a Principal Legal Officer with the Office of the Solicitor-General, Department of Justice;
2. Deputy Chairman—Superintendent Sylvester Kalaut, Provincial Police Commander, East New Britain Province;
3. Chief Inspector Timothy Gitua, Director of Frauds and Anti-Corruption Squad, under him were six Investigators, one Forensic expert, one Police Prosecutor, two Financial Intelligence Unit Officers and six Mobile Squad members;
4. A lawyer from the Public Prosecutor’s Office;
5. An officer with the Department of Treasury;
6. An accountant from the Office of the Auditor-General;
7. An officer from the Tax Compliance Division of the Internal Revenue Commission;
8. An officer of the Department of Provincial and Local-Level Government Affairs; and
9. A medical officer.
5. The following are the Terms of Reference for ITFS:
TERMS OF REFERENCE
The following are the Terms of Reference (TOR) for the Team:
1. Inquire into and ascertain:
i) that Public Funds (Development Budget Component) administered by the Department of National Planning & Monitoring of the 2009, 2010 & 2011 Budgets we appropriated in compliance with their respective Appropriate Acts;
ii) that those who applied for and received the funds were in accordance with the Appropriation Acts;
iii) that the project submissions were consistent with the Appropriation Act and passed the screening criteria used by the Department of National Planning and Monitoring without undue influence;
iv) that the components of the project did not place themselves in a conflict of interest position;
v) if those funds were diverted, who orchestrated the diversion and who benefited from such a diversion;
vi) if funds were paid outside of the Appropriation Act, who applied for and benefited from the funds;
vii) whether the funds were sufficiently used for the purpose to which it was applied and granted;
viii) whether certain laws including the Public Finance
(Management) Act, Public Service (Management) Act and the Criminal Code Act, etc were breached;
ix) who orchestrated the breach of those laws;
x) whether the person(s) implicated were public servants and if so, whether their conduct also amounted to conflict of interests.
2. Prosecute the persons criminally implicated during the inquiry under the laws of Papua New Guinea, including but not limited to the Criminal Code Act and Proceeds of Crime Act, 2005;
3. Take all steps under the Proceeds of Crimes Act, 2005 and the Mutual Assistance in Criminal Matters Act, 2005 to recoup all proceeds of all funds found to have been diverted and misappropriated, such proceeds as are defined by Section 10 of the Proceeds of Crime Act;
4. Refer the person(s) to the Ombudsmen Commission if he/she is a leader covered by the Leadership Code;
5. Recommend for immediate termination of employment if he or she is a public servant who is implicated in the investigations;
6. Furnish to the NEC within 3 months from the date of commencement, a report on the investigations conducted, persons implicated, prosecutions done, funds recouped, referrals made to the Ombudsmen Commission and further actions to be taken if need be;
7. Recommend to the NEC through the Minister of National Planning and Attorney-General, possible...
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