Sam Koim v Hon. Peter O'Neil

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, J
• Judgment Date: 28 July 2014
• Citation: (2014) N5694
• Court: National Court
• Year: 2014
• Judgement Number: N5694

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

N5694

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 444 OF 2014

BETWEEN:

SAM KOIM, the Chairman of Task Force Sweep

Plaintiff/Applicant

AND:

HON. PETER O'NEIL - as Prime Minister & Chairman

of the National Executive Council

First Defendant

AND:

THE NATIONAL EXECUTIVE COUNCIL

Second Defendant

AND:

HON. ANO PALA, Minister for Justice & Attorney General

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Gavara-Nanu, J

2014: 10, 11, 16 & 28 July

PRACTICE AND PROCEDURE – Judicial Review – Stay – National Court Rules; Order 16 r. 3 (8) (a) – Principles relating to Stay discussed.

PRACTICE AND PROCEDURE – Judicial Review – Pleadings – National Court Rules; Order 16 rr. 3 (2) (a) and 13 (2) – Motions (Amendment) Rules, 2005 r. 9 – Requirements of the rules – Substantial compliance with the rules – National Court Rules; Order 1 rr. 7 and 8 – 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 SC 1357

Duma v. Meier (2007) SC 898

Halifax Group of Companies Ltd v. Papua New Guinea Land Board (2012) SC 1150

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; SC 996

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; SC 707

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) SC 1075

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) SC 955

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

Counsel:

M. Nale with C. Karaiye, for the plaintiff

M.M. Varitimos QC with W. Kapipi, for the first defendant

R. Habuka, for the second defendant

N. Tame, for the third and fourth defendants

28th July, 2014

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...