Hon Ben Micah, MP v Rigo A Lua

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Nablu, AJ
• Judgment Date: 20 May 2015
• Citation: (2015) N5972
• Judgment Number: N5972
• Year: 2015

Full : OS (JR) NO. 233 of 2015; Honourable Ben Micah, MP v Rigo A Lua, Chief Ombudsman and Phoebe Sangetari, Ombudsman and Ombudsman Commission and Pondros Kaluwin, Public Prosecutor (2015) N5972

National Court: Nablu, AJ

Judgment Delivered: 20 May 2015

N5972

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 233 of 2015

BETWEEN:

HONOURABLE BEN MICAH, MP

Plaintiff

AND:

RIGO A LUA, CHIEF OMBUDSMAN

First Defendant

AND:

PHOEBE SANGETARI, OMBUDSMAN

Second Defendant

AND:

OMBUDSMAN COMMISSION

Third Defendant

AND:

PONDROS KALUWIN, PUBLIC PROSECUTOR

Fourth Defendant

Waigani: Nablu, AJ

2015: 8 & 20 May

JUDICIAL REVIEW – Application for leave –Section 8 of the Claims By and Against the State Act – State not named as a party – Decision of Ombudsman Commission to refer Leader to Public Prosecutor - Ombudsman Commission – Power to collect additional information––Section 21 of the Organic Law on Duties and Responsibilities of Leadership – Grounds of review are not meritorious – Administrative remedies have not been exhausted - Leave refused.

Cases cited:

Papua New Guinea Cases

NTN Pty Ltd v. Board of Post and Telecommunication Corporation and Post and Telecommunication Corporation and Media Niugini Pty Ltd [1987] PNGLR 70

Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Paul Asakusa v. Andrew Kumbakor (2008) N3303

Dr Rose Kekedo v. Burns Philip Ltd [1988- 89] PNGLR 122

Innovest Limited v. Patrick Pruaitch, Minister for Forests and Climate Change (2014) N5494

Mision Asiki v. Manasupe Zurenuoc (2005) SC 797

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

Supreme Court Reference by the East Sepik Provincial Government (2011) SC 1154

Ombudsman Commission v. Peter Yama (2004) SC 747

Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417

Grand Chief Sir Michael Somare v. Chronox Manek, John Nero and Phoebe Sangatari as Ombudsman Commissioners and the Ombudsman Commission (2011) SC 1118

Wartoto v. The State (2015) SC 1411

Overseas Cases cited:

Inland Revenue Commissioners v. National Federation of Self Employed and Small Business Ltd [1982] AC 671

Counsels:

MM Varitimos & N Saroa, for the Plaintiff

A Chillion, for the State

20th May, 2015

1. NABLU, AJ: By way of an Originating Summons filed on 30th April 2015, the plaintiff, the Honourable Ben Micah, MP seeks leave to review the decision of the Ombudsman Commission (the first and second defendants) on 9th March 2015 to refer him to the Public Prosecutor for allegations of misconduct in office in breach of Division III.2 (Leadership Code) of the Constitution.

2. The application for leave is made pursuant to Order 16 Rule 3 of the National Court Rules and supported by the Statement in Support filed pursuant to Order 16 Rule 3(2)(a) and verified by the Affidavit of the Honourable Ben Micah filed on 30th April 2015. The plaintiff also relied on additional evidence such as the Affidavit of Alex Wilson filed on 4th May 2015 and the Affidavits of Nelson Saroa filed on 30th April 2015 and 4th May 2015 respectively.

3. A preliminary point was raised by the Court, and that was that the State was not named as a party to this application for leave. This gave rise to an issue in regard to the applicability of Section 8 of the Claims By and the Against the State Act whether this section can be invoked to give the State an opportunity to be heard.

4. Section 8 of the Claims By and Against the State Act provides that:

“Section 8 Leave for judicial review

Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard (emphasis mine).”

5. Mr Varitimos of counsel for the plaintiff submitted that the Secretary for Justice was duly notified as per the prescribed requirement under Order 16 Rule 3(3) of the National Court Rules and therefore the application for leave should proceed ex parte`.

6. Upon perusing Section 8 of the Claims By and Against the State Act, only applications where the State is named as a defendant, then the Court should give the opportunity to the State to make an appearance and be heard on the application for leave. Justice Gavara- Nanu in his recent decision of Innovest Limited v. Patrick Pruaitch, Minister for Forests and Climate Change (2014) N5494 succinctly outlines the practice and procedure for applications for leave to apply for judicial review. His Honour expands on the decision of Injia DCJ (as he then was) in Peter Makeng v. Timbers (PNG) Limited (2008) N3317 with respect to the procedure for applications for leave and the form of the pleadings for an application for leave to apply for judicial review.

7. I agree and adopt the views of Gavara – Nanu J, in regard to the practice and procedure for applications for leave (Innovest Limited v. Patrick Pruaitch, Minister for Forests and Climate Change (supra) at pages 4-12). In regard to the State’s right to be heard pursuant to Section 8 of the Claims By and Against the State Act, His Honour stated that where the State is not named as a defendant, the Court still has the discretion to consider whether to hear an application for leave in the absence of the State.

8. In the present case, the State was not named as a party, I was of the view that State entities and agencies were named as defendants and the State would be prejudiced if they were not given an opportunity to be heard on the application for leave. In addition to that, this was a Leaders’ application for leave for judicial review of the decision of the Ombudsman Commission to refer him to the Public Prosecutor, therefore undoubtedly, it was a matter of great public interest. Therefore, I exercised my discretion to adjourn the application to allow the State to make an appearance and be heard.

9. My view, is supported by two basic reasons. Judicial Review is the Courts inherent power to review administrative decisions (Dr Rose Kekedo v. Burns Philip Ltd [1988- 89] PNGLR 122). These administrative decisions are made pursuant to the decision – makers’ powers derived from the application of the laws of the State. The other reason is that, the National Court Rules Order 16 Rule 3(3) prescribes the requirement for the Secretary for Justice to be notified two (2) days before an application for leave is made. Therefore, where the decision subject of review is made by entities and agents of the State, the State should be afforded the right to be heard at the application for leave stage, despite the fact that the State is not named as a party. In the case of Mision Asiki v. Manasupe Zurenuoc & Others (2005) SC 797, the Supreme Court held that the requirement to notify the Secretary for Justice under Order 16 Rule 3(3) is a requirement specifically applicable to judicial review proceedings and akin to the Section 5 Notice pursuant to the Claims By and Against the State Act.

10. Based on those reasons, the matter was adjourned and the matter returned on 8th May 2015 to give sufficient time for the State to obtain instructions and be heard. The State did not file any affidavit in response, however, Mr Chillion of counsel for the State indicated that the State opposed the application for leave. The State indicated that they would contest the requirements of an arguable case and the requirement to exhaust all administrative remedies.

11. The background of this matter is provided in the plaintiffs Statement in Support and the Affidavits in Support. The Honourable Ben Micah (the Leader) is an elected Member of Parliament representing Kavieng Open Electorate in New Ireland Province. The Leader seeks review of the decision of the Ombudsman Commission (Commission) on 9th March 2015 to refer him to the Public Prosecutor.

12. On 8th July 2014, the Leader was informed by way of a letter from the Commission to personally attend at the Office of the Ombudsman Commission on 11th July 2014. On that day, the Leader attended the meeting and was informed that there were four (4) allegations of misconduct in office made against him.

13. The Commission alleged that the Leader had interfered with the Board of PNG Power Limited. The second allegation was that the Leader had denied any knowledge of PNG Power Limited’s financial crisis. Thirdly, it is alleged that the Leader used his office to obtain a benefit in hotel accommodation at the Grand Papua Hotel. The final allegation is that the Leader defied a directive by the Ombudsman Commission. The Leader was given a period of twenty-one (21) days to respond to the allegations. The Leader sought an extension of an additional twenty-one (21) days to respond to the allegations. On the basis of procedural fairness the Commission granted him a further 14 days which lapsed on 15th August 2014.

14. The Leader responded to the four (4) allegations on 15th August 2014, in writing as well as attending to and making a presentation at the Office of the Commission. He was accompanied by his Lawyer, First Secretary and Executive Officer.

15. Then on...