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Kebori v Momis [2020] PGNC 403; N8648 (19 November 2020)

N8648

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 763 OF 2019

BETWEEN:
PAUL KEBORI
First Plaintiff

AND:
CHIEF DR JOHN L MOMIS IN HIS CAPACITY AS CHAIRMAN, BOUGAINVILLE SENIOR APPOINTMENTS COMMITTEE
First Defendant

AND:
JOESPH NOBETAU IN HIS CAPACITY AS CHEIF SECRETARY DEPARTMENT OF PRESIDENT & BOUGAINVILLE EXECUTIVE COUNCIL
Second Defendant

AND:
BOUGAINVILLE SENIOR APPOINTMENTS COMMITTEE
Third Defendant

AND:
AUTONOMOUS BOUGAINVILLE GOVERNMENT
Fourth Defendant

Waigani: Miviri J
2020: 24^th September, 19^th November

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Leave to apply for Judicial review – Bougainville Secretary for Personal Management & Administrative Services – Termination of – Standing – delay inordinate & inexcusable – No Arguable case – Internal remedies exhausted – application for leave refused– cost follow event.

Cases Cited:

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303

Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Kekedo v Burns Philip(PNG) Limited [1988-89] PNGLR 122
Counsel:

W. Donald, for Plaintiff
P. Yom, for Defendants

RULING

19^th November, 2020

1. MIVIRI, J: This is the ruling on the originating summons of the plaintiff filed the 25^th October 2019 pursuant to Order 16 Rule 3 (1) of the National Court Rules “the Rules” for leave to be granted to judicially review decisions by each of the defendants. Firstly, of the First defendant by letter dated the 16^th March 2018 to remove him from office as Secretary for the department of Personal Management and Administrative Services of the Autonomous Region of Bougainville with immediate effect.
   
2. Then the Third defendant’s decision to remove him from that position and that of the second defendant to refer him to the third defendant for investigations dated the 22^nd May 2017. And a further decision of the 2^nd August 2017 of the Second defendant to refer him to the third defendant for investigations.
   
3. These decisions were jointly made by the First Second and Third Defendants to terminate him as Secretary for the department of Personal Management and Administrative Services of the Autonomous Region of Bougainville. They were decisions that affected him personally. And he has standing or locus standi to pursue the matter. He satisfies that requirement on the balance of preponderance because as a result of those decisions he is no longer employed.
   
4. The next requirement is whether or not he has an arguable case. Prima facie a complaint of fraud and misappropriation was made pertaining to his conduct in the office. And these allegations were investigated by former chief Ombudsman Mr. Ila Geno which was presented to the third defendant on 15^th March 2018 a copy was also presented to the plaintiff also on that day. It was a very damning report against him. The third defendant adopted it and on the 22^nd May 2017 plaintiff was suspended with pay on allegations of misconduct by the second defendant in relation to three (3) specific matters. The suspension notice is annexure “C” of the affidavit of the plaintiff sworn 30^th September 2019 filed 25^th October 2019. And annexure “D” is additional allegations referred against him. And annexure “E” is his response to the second set of allegations. In both instances annexure “G” is audit report from the National Departments of Personal Management Finance and Treasury “H” is the response of the plaintiff to the said report. And he was formally on contract that he took up on the 28^th September 2015 for a term of 5 years ending 28^th September 2019.
   
5. These facts from his own affidavit do not set out an arguable case because an allegation was made against his conduct in the position that he held. That was independently investigated and verified by independent evidence of audit from the National Departments of Personal Management Finance and Treasury. There is observance of natural justice and the rule of law prima facie to his case. There is no unreasonableness in the Wednesbury sense for an arguable case demonstrated both procedural ultra vires and in substantive ultra vires in the decisions leading to his demise. In essence, there is no arguable case demonstrated to the required balance to sustain this ground. It is not made out in favour of the plaintiff.
   
6. In a fundamental way it shows internal processes and procedure were followed to see him out from that position that he held so that is successful completion and exhausted within internally warranting his action properly before the court and this ground is successfully made out in his favour: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008).
   
7. That now leaves the remaining ground of whether or not there was delay in the bringing of this action. And the reference here is to Order 16 Rule 4 of the Rules. Specifically, whether he has come to court after four (4) months since the 16^th March 2018 when his employment as Secretary for the department of Personal Management and Administrative Services Autonomous Region of Bougainville was terminated. His originating summon is of the 25^th October 2019 against decision made on the 16^th March 2018, secondly on the 22^nd May 2017 and 2^nd August 2017. The first decision is over 19 months before it is challenged by this process; the second decision is 28 months before it is challenged by this proceeding. And it is 25 months since the 2^nd August 2017 before challenge in this proceeding.
   
8. Order 16 Rule 4 of the Rules is clear that where there is undue delay and the application is made after expiry of that period leave may be refused. Because certiorari is sought to remove into court and to quash the series of decisions set out above it follows that time within which to bring this cause of action is 4 months after those proceedings. It is clear time is not on the side of the plaintiff in this regard in all the decision set out above. And the materials relied on including the affidavit of the plaintiff do not disclose convincing and cogent reasons to waive that the fulfilment of this principle. This includes the supplementary affidavit of 28^th November 2019. He is and was the Secretary for the department of Personal Management and Administrative Services of the Autonomous Region of Bougainville no doubt in that position would have some basis to see out a proper course in law. The resort that he was not sure where to go is not a basis to waive this ground as in his role and position he would have known to go to a lawyer to seek out advice on the matter. He did not take it upon himself to exert with determination it was his cause of action not anyone and he elected to sit out time delaying it inordinately without good reasons. Because he filed for leave on the 25^th October 2019 and his contract of employment as Secretary for the Department of Personal Management and Administrative Services of the Autonomous Region of Bougainville expired on the 28^th September 2019. It being a five-year contract dating from when it was initially signed on the 28^th September 2015. He in all respects did not have locus standi to pursue the matter. The sum is that he has not discharged the balance that time has been inordinately delayed given it is almost two years lapse before he instituted the process here.
   
9. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005. That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Which also boldly sets in place the requirement to satisfy all grounds set out above before the grant of leave to judicially review an administrative decision as here. Because it is a restrictive procedure and guard against busy bodies and the like from mingling into its tracks leave application has jealously observed over the years since, Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. It would be no different here and there has not been advanced any matters by the materials relied to deviate or waive what has been settled.
   
10. I am fortified in all the circumstances on the law and evidence drawn out above both for and against that the balance of probabilities has not been discharged to the required level by the plaintiff. He has not satisfied the requirements lacking set out above for leave for Judicial Review. The consequences which directly follow in law and fact are that this proceeding is dismissed forthwith.
    
11. The formal orders of the court are;
    
    • (1) Leave is refused forthwith.
    • (2) The proceeding is dismissed in its entirety forthwith.
    • (3) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Donald & Company Lawyers: Lawyers for the Plaintiff /Applicant

Office of the Solicitor General: Lawyers for Defendants