Hon Patrick Pruaitch, MP v Chronox Manek, John Nero and Phoebe Sangetari, (Comprising the Ombudsman Commission) and Jim Wala Tamate, the Acting Public Prosecutor and Hon Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken and Nerrie Eliakim, (Comprising the Leadership Tribunal) and Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Gavara-Nanu and Davani J J
• Judgment Date: 31 May 2010
• Court: National Court
• Citation: (2010) SC1052
• Docket Number: SCA. NO. 7 OF 2010
• Year: 2010
• Judgement Number: SC1052

Full Title: SCA. NO. 7 OF 2010; Hon Patrick Pruaitch, MP v Chronox Manek, John Nero and Phoebe Sangetari, (Comprising the Ombudsman Commission) and Jim Wala Tamate, the Acting Public Prosecutor and Hon Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken and Nerrie Eliakim, (Comprising the Leadership Tribunal) and Independent State of Papua New Guinea

National Court: Kirriwom J, Gavara-Nanu and Davani J J

Judgment Delivered: 31 May 2010

SC1052

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 7 OF 2010

BETWEEN:

HON. PATRICK PRUAITCH, MP

Appellant

AND:

CHRONOX MANEK, JOHN NERO AND PHOEBE SANGETARI, (Comprising the Ombudsman Commission)

First Respondents

AND:

JIM WALA TAMATE, THE ACTING PUBLIC PROSECUTOR

Second Respondent

AND:

HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN AND NERRIE ELIAKIM, (Comprising the Leadership Tribunal)

Third Respondents

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Kirriwom J, Gavara-Nanu and Davani J J

2010: 31st March and 31st May

APPEALS – PRACTICE & PROCEDURE – Application for leave to appeal on a question of fact – Whether leave should be granted – Arguable case test – Appellant failing to satisfy arguable case test – Leave refused.

CONSTITUTIONAL LAW –Meaning and effect of a referral by the Ombudsman Commission to the Public Prosecutor– Organic Law on Duties and Responsibilities of Leadership (OLDRL) s.27 (1) (a) and Constitution s. 29 (1)- A referral by the Public Prosecutor to an appropriate tribunal – OLDRL s. 27 (2) – Meaning and effect of a referral by the Public Prosecutor discussed.

CONSTITUTIONAL LAW – Ombudsman Commission has no power over a referral made by the Public Prosecutor in the exercise of the powers given to him under the Constitution s. 177(1) – Public Prosecutor’s decision to either refer or not to refer a matter to an appropriate tribunal which is made pursuant to Constitution s. 177 (1,) is made independently of the Ombudsman Commission.

CONSTITUTIONAL LAW –A referral by the Public Prosecutor to an appropriate tribunal – Public Prosecutor’s request to the Chief Justice to appoint an appropriate tribunal to inquire into the matter – Meaning and effect of a “matter” discussed - Appointment of a tribunal by the Chief Justice made pursuant to OLDRL s. 27(7) by an instrument of appointment signed by the Chief Justice – A tribunal has jurisdiction over a matter upon its appointment by the Chief Justice.

CONSTITUTIONAL LAW - Effect and meaning of s. 28 (1) of the OLDRL - A leader who is referred to an appropriate tribunal is automatically suspended from duty with full pay effective from the day the tribunal is appointed by the Chief Justice.

Cases cited:

Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307

Brian John Lewis v Independent State of Papua New Guinea [1980] PNGLR 219

Gary McHardy v Protect Security and Communications Ltd trading as Protect Security [2000] PNGLR 279

Ila Geno v. Independent State of Papua New Guinea [1993] PNGLR 22

Opai Kunangel v The State [1985] PNGLR 144

Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329

Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC 1011

Sausau v. Kumugal and PNG Habours Board (2006) N3253

SCR No. 2of 1982; Re Kunangel [1991] PNGLR 1

SCR No. 2 of 1992; Re The Leadership Code [1992] PNGLR 336

SCR No. 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151

Sir Julius Chan v. the Ombudsman Commission of Papua New Guinea [1999] PNGLR 240

Timothy Patrick & Others v. Pepi Kimas & Others N3913

Zachery Gelu v. Sir Michael Somare MP (2008) N3524

Overseas cases cited

Antaios Campania Naviera S.A v. Salen Rederierna A.B [1985] AC 191

House v The King [1936] 55 CLR 499

Pioneer Shipping Ltd v. B.T.B Trioxide Ltd [1982] AC 724

Richard West and Partners (Inverness), Ltd and Another v Dick [1969] 1 All E.R 289

Counsel

M. Cooke QC with F Griffin, for the Appellant

V. Narokobi, for the First Respondent

N. Miviri, for the Second respondent

T. Tanuvasa, for the Third and Fourth Respondents

31 May, 2010

1. BY THE COURT: The appellant is appealing against the decision of Kariko J delivered on 12 February 2010 in proceedings OS No. 34 of 2010 where His Honour refused the Appellant’s motion seeking inter alia interim injunctive relief and stay orders to prohibit his Referral by the Ombudsman Commission being acted upon any further. Aggrieved by this decision the appellant appealed to this court raising grounds based on questions of law, mixed fact and law (which does not concern us in this hearing) and one ground on a question of facts alone which we have to decide on.

3. Upon lodging his appeal, the appellant also sought and obtained an ex parte stay orders before Sevua J, effectively staying the National Court decision of 12 February 2010, thereby restraining the Leadership Tribunal from convening its hearing. In doing so, His Honour directed for the issue of stay to be addressed before the full three-men bench for its determination; hence this issue coming before us to be considered afresh.

4. This Court is specially constituted to deal with two matters arising out of that appeal, namely, leave to appeal on question of facts alone and the question of stay. At the hearing of these two matters, a pertinent point of law often running parallel with Referral of a leader to a Leadership Tribunal, which is the question of suspension of the leader once the Leadership Tribunal is appointed, was raised by the Court with counsel. The parties were given ample time to prepare on all three legal issues and heard submissions.

5. The substantive grounds of appeal based on law and questions of mixed facts and law are not before us and as such our decision is confined only to those three issues we alluded to above.

Background

6. It is helpful to set out a brief background of this appeal. In September, 2006, the Ombudsman Commission wrote to the appellant pursuant to s. 20 (3) of the OLDRL and informed him of his right to be heard on 11 allegations of misconduct in office against him. In October, 2006, the appellant appeared in person before the Commission and verbally gave his responses to the 11 allegations. Towards the end of November, 2006, again in the further exercise of his right to be heard, the appellant made and submitted a detailed written response to all 11 allegations.

8. On 22 July, 2009, the Commission wrote to the appellant and advised him that it had considered his responses to the 11 allegations and had decided to refer 8 of those allegations to the Public Prosecutor for possible prosecution under ss. 20 (4) and 27 (1) (a) of the OLDRL and s. 29 (1) of the Constitution.

9. On 20 August, 2009, the appellant filed proceedings in OS No. 456 of 2009, under Order 16 of the National Court Rules, challenging the referral of the matter of the investigations into the 8 allegations of misconduct in office against him (“the matter”) to the Public Prosecutor arguing that he had been denied the right to be heard on the matter.

10. The application for leave for judicial review in proceedings OS No. 456 of 2009, was heard by Hartshorn J. On 8 September, 2009, His Honour gave his decision in which he refused leave.

11. Subsequently, the Public Prosecutor wrote to the Chief Justice requesting that an appropriate tribunal be appointed to inquire into the matter.

12. It is to be noted that the application for leave for judicial review before Hartshorn J, was made ex parte.

13. In OS No. 456 of 2009, while refusing leave for judicial review Hartshorn J, said the appellant was duly heard by the Ombudsman Commission on all 8 allegations before referring the matter to the Public Prosecutor, thus there was no arguable case warranting a judicial review.

14. Almost five months after Hartshorn J, refused the appellant’s application for leave for judicial review, the appellant, on 4 February, 2010, filed another proceedings in OS 34 of 2010, seeking certain declaratory, preventive, injunctive and stay orders. The proceedings were filed pursuant to ss. 23, 155 (4) and 217 (b) of the Constitution.

15. The case returned before Kariko J, on 10 February, 2010. Critical evidentiary material placed before His Honour for purpose of that motion was the affidavit by Kanawi Pouru which was filed on 9 February, 2010. Mr. Pouru was the incumbent holder of the position of the Managing Director of the Papua New Guinea Forests Authority, when the appellant was the Minister for Forests from 2003 to 2007. In his affidavit, Mr. Pouru deposed to matters relating to debts totaling K20, 000.00 incurred by the appellant as the Minister for Forests and his entitlements. These issues were the subject of investigations by the Ombudsman Commission. In his affidavit, Mr. Pouru annexed the summons issued to him by the Ombudsman Commission requiring him to produce to the Commission information relating to the appellant’s entitlements and debts he incurred during his term as the Minister for Forests. The summons was issued on 22 January, 2008. The other annexure to Mr. Pouru’s affidavit is a letter written by Mr. Pouru to the Ombudsman Commission dated 4 February, 2008, in which Mr. Pouru explained how the debt of K20,000.00 was incurred by the appellant and provided information on the...