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Kenneth v Momis [2021] PGNC 220; N8935 (16 July 2021)

N8935

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 595 OF 2018


BETWEEN:
WESLEY KENNETH
Plaintiff


AND:
HON CHIEF DR. JOHN MOMIS CGL, MHR AS CHAIR OF BOUGAINVILLE SENIOR APPOINTMENTS COMMITTEE
First Defendant


AND:
CHIEF ILA GENO, CGL, OBE, QPM, MCS AS BOARD OF INQUIRY
Second Defendant


AND:
AUTONOMOUS BOUGAINVILLE GOVERNMENT
Third Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Miviri J
2021: 18th June, 16th July


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of motion –Order 16 Rule 1 NCR – Judicial Review –Secretary Community Government Bougainville Autonomous Government – Bougainville Senior Appointments Act (BSAA) – Board of Inquiry Section 33 (2) BSAA – Suspension – Certiorari – Mandamus – Declaration – material relied insufficient – balance not discharged – Judicial Review refused – cost follow indemnity basis follow event.


Cases Cited:


Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909

NTN Pty Ltd http://www.paclii.org/images/dispright.png v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

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

Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015

Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47

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

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

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

Lupari v Somare [2008] PGNC 121; N3476
Counsel:


P. Tamutai, for Plaintiff
R. Puka, for First & Third Defendants
M. Tukuliya, for Fourth Defendant


RULING

16th July, 2021

  1. MIVIRI, J: This is the ruling on the plaintiff’s substantive notice of motion for judicial review filed 25th October 2018.
  2. What is overt and substantive at the outset immediate not addressed by either parties to the cause, is as to why an action for judicial review the substantive notice of motion has not been moved either early 2018, 2019, 2020, or even beginning of 2021, but now towards the middle of the year 2021. A total of almost three and half years without moving an action that is drawing blood every minute, so much so that life is no longer. It is a serious concern especially as to the utility of the proceeding because judicial review is not a hypothetical case posed, or an opinion to set the law clear, but a practical solution to injustice inequity observed effected in the hands of the defendant against the plaintiff. Here is a case of a litigant occupying a very Senior Office in Government derailed who has not taken immediate uprising to see out injustice immediate, and after the act so that it is corrected there and then. It has been called here after the lapse of almost three (3) and half year’s.
  3. Unexplained delay especially from the litigant Plaintiff who is in this case alleging:-
  4. There are simply no reasons to see as to why this is the case. Particularly with the backdrop that inordinate and unexplained delay has seen dismissal at Law: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008). Here it was 12 years in the making before the application was instituted for judicial review. In that time the plaintiff engaged in correspondence with authorities rather than pursue in court after. There was deliberate failure to utilize available effective remedy discretionary in his hands to institute. It meant that to bring it late was to cause prejudice inconvenience in reparable damage to the other side that would not be equated in action for the same. This view is clearly affirmed in NTN Pty Ltd http://www.paclii.org/images/dispright.png v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 where the language expressed is, “In the interests of good administration an applicant who wishes to challenge a decision which has implications for another party or for public administration is under a heavy duty to act expeditiously and fairly.”
  5. What is the utility in the challenge of the process here, given Justice is not one sided, but must see the other side also, and a balance weighed to arrive at in law sequenced by the facts and circumstances posed. This observation is material because of Order 16 Rule 4 (2) of the National Court Rules spelling four (4) months after the date of hearing or the action or decision made. Here there is simply no account as to why this action is proceeding in its substantive notice of motion almost three (3) and a half-years in the making. Because to use the words of Order 16 Rule 4 that the Court may refuse to grant any relief sought on the application “if in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”
  6. That is pertinent and outstanding on the part of the plaintiff to advance given the lapse that time has moved, administration in the Bougainville Autonomous Government has moved on, new appointment has been made to the position he contends for judicial review, what would be served in the remedies that he seeks. Here it is important to assess that he is seeking certiorari against the process of law instituted by law emanating from sections of the law every step of the way. From section 33 (2) of the Bougainville Senior Appointments Act 2014 (BSAA) to investigate the allegations raised against the plaintiff in the petition of the 18th May 2018. What is there wrong and error of law where a process of law pertaining to starting the disciplinary process is followed to heed that section.
  7. Because at the outset, certiorari has been accustomed to denoting that procedure has not been followed, or misapplied, or not complied with, resulting in removal from a position as in Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). In the present the allegation he contends is he was removed as the Secretary Community Government to the Bougainville Autonomous Government not by process of law. The question posed is, did the defendants follow a process set out by law so that the plaintiff’s removal was a culmination of that process? And therefore, according to law. The relevant law given here would be the Bougainville Constitution, Bougainville Public Service and Management Act 2014 and the Bougainville Senior Appointments Committee (Appointments and Disciplinary Procedures of Bougainville Constitutional and Senior Office Holders) Act 2011.
  8. What is evident is that he has tendered his resignation by letter dated the 30th May 2018 annexure “S2” to his affidavit of the 28th February 2018. He writes that under section 40 of the Senior Appointments Act 2014 he was tendering his resignation for the approval of the President of AROB & the Chairman of the Bougainville Senior Appointments Committee. And he requested that the resignation takes effect after the end of his second term ending on the 10th October 2018. The letter continues, “I personally thank you for your confidence in recruiting me. While I have been capable of leading the Department, I regret that the process involved in obtaining and executing the Disaster Outstanding Funds have been questionable. Please accept my apology, as I prepare to exit the Bougainville Public Service. I have learnt from this experience and I will NOT make the same mistakes again. Signed Wesley Kenneth Secretary CG. Copies to Hon Jacob Tooke Minster for Community Government, Hon Robert Hamal Sawa Minister for Public Service, Col Thomas Raivet Acting Chief Secretary.”
  9. The fact of the matter is that the resignation does not take effect immediately by the date of the letter of 30th May 2018. He is still covered by the ambit of the section 33 (2) of the Bougainville Senior Appointments Act 2014 (BSAA) to be investigated for the allegations raised against him in the petition of the 18th May 2018. He is still a Departmental head within the meaning of the BSAA and therefore what has taken place is by law and it follows throughout to the end of that process. The disciplinary process begins with the investigative phase leading to the next by that law. There is no error demonstrated in the process of law taken by the defendants here. This ground is without merit and fails.
  10. Importantly it is not a matter open on mandamus to force the First Defendant to accept his resignation which effect would be to salvage his cause that he left the Bougainville Public Service without scar and so his entitlements following. He was still under the scope of the law section 33 (2) of the Bougainville Senior Appointments Act 2014 (BSAA) 13th June 2018 for investigation leading to eventual demise on 19th September 2018.
  11. Secondly the decision of the second defendant made the 16th September 2018 to recommend to the First Defendant to remove the Plaintiff from the office pursuant to section 36 (7) (b) (iv) of the Bougainville Senior Appointments Act 2014 is within the dictate of that law and is not an error of law. It is a process that is part of the disciplinary process by that law and satisfies without any error demonstrated. That is the requirement exerted by the authorities designated under that law and complied leading to his removal. It follows from the above process and compliments because he was lawfully executed by it. There is no merit in this ground and it too fails.
  12. Thirdly the decision of the First Defendant made on the 19th September 2018 to dismiss the plaintiff from office in accordance with Section 37 (1) (a) of the Bougainville Senior Appointments Act 2014 based on findings and recommendations of a board of inquiry by Chief Ila Geno is actually what is by that section and the law and stands in law. It is a process that gives heed and has seen no error as contended by the Plaintiff. He has pointed with no merit and therefore coupled with all set out above this ground is without merit and is not sustained in his favour.
  13. Fourthly, the declaration seeks for the dismissal of the Second defendant on the 19th September 2018 to be declared illegal, null and void and cannot stand in view of all made out above. This is yet another ground without any merit in law or fact and stands dismissed.
  14. Fifthly, there cannot be any order in the nature of Mandamus requiring the First Defendant to acknowledge and accept the resignation of the Plaintiff dated 30th May 2018 forthwith to authorize the payment of all contract entitlements due to the Plaintiff under the terms and conditions of appointment entered into on the 10th October 2016. Because the reasons are very clear process and procedure has been followed to the letter of the law by the defendants and there is no merit to grant mandamus to compel as contended. This is a remedy that is without the basis in law to set in his way. He will not be accorded.
  15. It would be the same for any damages if any at all for mental anguish and anxiety and public Humiliation suffered by the Plaintiff and his family. This would be so in the case of cost but would be on an indemnity basis for the reasons I set out above including costs of the application which in my view considering all set out above will be on an indemnity basis to follow the event.
  16. It is undoubtedly clear he is subjected to the process of law because he has not officially left the chair of Secretary for Community Government until the 10th October 2018. Whatever comes as a result of the process of law that the defendants are required to heed leading up from May 2018 to 19th September 2018 is within the confines and jurisdiction of the laws set out above. He is covered squarely within and the process leading is not erroneous, but confinement compliance and therefore the result attained stands in law. He was processed via that process there is nothing to argue nor move to review as he has contended. His action is without merit given and must suffer what it is due it. Judicial review does not lie given and is refused on all fours as pleaded.
  17. This was an unnecessary application it ought not to have been run given the material all set out above. It drew the defendants’ respondents to endure account unnecessary expenditure to their accounts for which the Plaintiff must make good on an indemnity basis. Cost is discretionary what is set out above clearly portray that the defendants’ respondents was unnecessarily drawn given the clear position set out above. It must come to a stage where it cannot be condoned by simple order of costs follow the event. Here the facts warrant: Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010) the Supreme Court stated that:

“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

  1. Rights flow but must be pursued with a sense of justice and fairness to the other side and to the court. Convoluted actions must be avoided, but there ought to be a sense of balance drawn so that equity meets equity. Finality in litigation must be envisaged and pursued not in pockets or piecemeal to finally drive here. A man who must be charged with break enter and stealing ought to be charged as such and not done on piecemeal basis, firstly with being unlawfully on premises, then with wilful damage and stealing. It does not serve justice. The road to justice is with fairness and equity. Is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. Or is this a case where there is blameworthiness and therefore indemnity follows in costs. Given all set out above this is a case for indemnity of cost to follow the event. Costs will therefore be on indemnity basis to follow the event.
  2. The law here is extrinsic and bold that it is the process properly pleaded out rather than what is the substance: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008) and that is the fate of the actions by the plaintiff. Procedurally he would have to show defiance to dictate that the defendants by the Bougainville Constitution and related Acts of the Bougainville House of Representatives have not acceded eventually to his demise: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). He has not done so his action for judicial review does not lie forthwith and fails in its entirety.
  3. The formal orders of the court are:

Orders Accordingly.

__________________________________________________________________

Tamutai Lawyers: Lawyer for the Plaintiff/Applicant

Henao Lawyers: Lawyer for First & Third Defendants

Office of the Solicitor General: Lawyer for the Fourth Defendant

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