In re Anderson Agiru; Review Pursuant to Section 155(2) and 155(4) of the Constitution [2002] PGLawRp 27; [2002] PNGLR 587 (24 May 2002)

[SUPREME COURT OF JUSTICE]

REVIEW PURSUANT TO SECTION 155 (2) (b) and 155(4) OF THE CONSTITUTION

APPLICATION BY ANDERSON AGIRU

Waigani: Kapi DCJ.; Los, Salika, Sakora, Injia JJ

29 April; 2, 24 May 2002

CONSTITUTIONAL LAW – Application under s 155(2)(b) Constitution – Circumstances under which it may be invoked.

Concurrent Existence of Right of Appeal or Leave to Appeal under the Supreme Court Act and Inherent Power of the Supreme Court under s 155(2)(b) Constitution – Inherent power cannot be invoked where a right of appeal or leave to appeal concurrently exists – To do so is an abuse of the process of the court.

Facts

On an application for judicial review under s 155(2) of the Constitution, the Supreme Court held:

Held

1. An application for the exercise of the discretionary power of judicial review under s 155(2)(b) should only be granted where the applicant has exhausted all other avenues. There are three categories of cases where this discretionary power has been exercised: Avia Aihi v The State [1982] PNGLR 44 applied.

2. The reason that on an appeal the Supreme Court could not grant interim orders is not a valid reason. See Peter Peipul v Sheehan J, Ori Karapo and Iova Geita, Ombudsman Commission and the State [2002] PNGLR ___(SCM No. 2 of 2002) where interim orders were granted on appeal.

3. The reason that it may be quicker to determine all issues when the Supreme Court considers the application for leave for judicial review is not a valid reason for invoking the discretionary powers of the Supreme Court under Section 155(2)(b) of the Constitution.

4. Section 155(2)(b) does not provide alternative remedies. An application for judicial review without first invoking the right to appeal is an abuse of process of the court. Application by Jeffery Balakau (SC 529 of 1996) applied.

5. A single judge of the Supreme Court has no power to make interim orders in judicial review under Section 155(2)(b) of the Constitution: Viviso Seravo & Electoral Commission v John Giheno (1998 SC539); Viviso Seravo & Electoral Commission v John Giheno (1998 SC555); Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission (1998 SC 562) and David Lambu v Peter Ipatas & Electoral Commission (1999 SC601) followed.

6. Los J (Dissenting) The question whether a tribunal other than a court of law could deal with an allegation that a leader is guiltY of an offence is an appropriate and substantive issue that should be allowed to come before the Supreme Court, which should not barricade itself with procedural rules. John Mua Nilkare v The Tribunal (SCA No. 46 of 1996) considered.

Papua New Guinea cases cited

Application by Jeffery Balakau (1996) unreported SC601.
Avia Aihi v The State [1982] PNGLR 44.
Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.
David Lambu v Peter Ipatas & Electoral Commission (1999) unreported SC601.
John Mua Nilkare v The Tribunal (1996) unreported SC498.
Peter Peipul v Sheehan J, Ori Karapo and Iova Geita, Ombudsman Commission and the State [2002] PNGLR ___.
Viviso Seravo & Electoral Commission v John Giheno (1998) unreported SC539.
Viviso Seravo & Electoral Commission v John Giheno (1998) unreported SC555.
Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission (1998) unreported SC562.

Counsel

G. Sheppard for the applicant.
D. Cannings and J. Nonggor for the Public Prosecutor.

24 May 2002

Kapi DCJ. This is an application for judicial review under s 155(2)(b) of the Constitution.

The circumstances leading to this review are these. The applicant was charged with 15 allegations of misconduct before the Leadership Tribunal under s 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and s 27 (1) (b), 27 (1) (c), 27 (1) (d), 27 (2) and 27 (5) (b) of the Constitution.

The Tribunal found the applicant guilty on 16 January 2002 of allegations numbered 1, 2, 4, 5, 6, 7, 8, 10, 11, 12 and 15 and not guilty of allegations 3, 9, and 14.

On 18 January 2002, the Tribunal recommended that the applicant pay a fine of K1,000.00 on each of the allegations numbered 1, 2, 4, 5, 6, 12 and 15. For allegation 7, 8, 10, 11 and 13 the Tribunal recommended dismissal from office.

The Acting Governor General, acting in accordance with the advice of the Tribunal, dismissed the applicant from office, and imposed a total fine of K7, 000.00 on 20 January 2002.

On 22 January 2002, the applicant filed originating summons in the National Court seeking leave for judicial review of the decision of the Tribunal under O 16 r 3 of the National Court Rules. The application for leave for judicial review was heard on 12 February and on 14 February 2002 Sheehan J refused leave for judicial review.

On 25th March 2002, the applicant filed application for two distinct remedies against the decision of the National Court; an application for judicial review under s 155 (2) (b) and orders under s 155 (4) of the Constitution.

At the initial hearing before us on 29 April 2002, the Court sought clarification of the nature of the application and dealt with other preliminary issues. Counsel for the applicant clarified matters by amending the application and confined the application to s 155 (2) (b) only. The application was heard on 2 May 2002.

An application for judicial review under s 155 (2) (b) of the Constitution is discretionary and may be granted by the Court in circumstances set out in the leading case of Avia Aihi v The State [1982] PNGLR 44.

Abuse of the Process of the Court.

Counsel for the Public Prosecutor, Dr. Nonggor raised the preliminary point that this application is an abuse of the process of the court and should be dismissed. He argues that a refusal for leave for judicial review under O 16 of the National Court Rules may be appealed to the Supreme Court under s 17 of the Supreme Court Act. Such an appeal may be brought by way of notice of motion (see O 10 of the Supreme Court Rules and O 16 r 11 of the National Court Rules). He argues that when this application was filed, the applicant had a right of appeal under the provisions referred to above, and he chose not to appeal. He argues that an application under s 155 (2) (b) under these circumstances is an abuse of the process of the court and should be dismissed.

Counsel for the applicant confirmed that a deliberate decision was taken not to appeal under the Supreme Court Act, but instead applied for judicial review under s 155 (2) (b) for two reasons. The first reason is that if an appeal was instituted under the Supreme Court Act, the applicant could not have obtained an interim order to allow him to nominate for the 2002 National Elections pending the determination of such an appeal. He argues that by filing s 155 (2) (b) application, he could apply to the Supreme Court and obtain an interim order to allow the applicant to nominate for the National Elections. In fact counsel for the applicant did obtain such an order from the Chief Justice on 8 April 2002 and the applicant was nominated.

The second reason is that if an appeal was filed under the Supreme Court Act and was successful, the matter would have to be sent back to the National Court for substantial judicial review hearing under O 16. He argues that if the applicant is not successful on the merits, there would not be enough time for the applicant to exercise his right of appeal under the Supreme Court Act before the National Elections which are scheduled to be held in June 2002.

Counsel for the applicant intended that if leave is granted, he would then apply for the transfer of proceedings in the National Court to the Supreme Court under s 155 (4) of the Constitution. He argues that this would enable the Supreme Court to deal with the decision of the Tribunal before the elections in June.

Section 155 (2) (b) is a grant of power to the Supreme Court. The provision does not deal with a right of any person to invoke that power. The Supreme Court Act and other laws determine rights of appeal or review. However, the Supreme Court in Avia Aihi v The State (supra) held that the Court may in its absolute discretion allow a limited class of cases for review under s 155 (2) (b).

There are three categories of cases where judicial review has been exercised under this provision:

(1) Where parties have allowed a statutory right of appeal to expire (Avia Aihi v The State (supra)).

(2) Where right of appeal is prohibited or limited by law (Election Petition cases where appeal is prohibited)

(3) Where there is no other way of going to the Supreme Court (see Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433 where the State had no other way of coming to the Supreme Court).

In the present case, the applicant had the right to appeal under the Supreme Court Act, but deliberately chose not to appeal and proceeded by way of s 155 (2) (b). The applicant therefore does not come under any of the categories where parties have been allowed to invoke the discretionary power of the Court under s 155 (2) (b).

The question we have to determine is whether, this Court may allow the applicant to invoke the discretionary power under s 155 (2) (b) for the reasons advanced by the applicant.

The first reason is that if he appealed under the Supreme Court Act, the applicant could not obtain an interim order to nominate. This is not a valid reason. In an appeal under the Supreme Court Act, the Court has power to make such orders under s 5 (1) (a) and (b) and possibly under s 19 of the Supreme Court Act. In fact, such an order was made by the Chief Justice in Peter Peipul v Sheehan J, Ori Karapo and Iova Geita, Ombudsman Commission and The State (SCM No. 2 of 2002), an appeal against the decision of the National Court in a judicial review proceeding against the decision of the Leadership Tribunal.

The second reason is that by coming to Court under s 155 (2) (b), it may be quicker to determine all the issues including the decision of the Leadership Tribunal. This is also not a valid reason. If the matter came by way of s 155 (2) (b), the Court would only be concerned with the application for leave for judicial review. Any such review if successful would only result in sending the matter back to the National Court to deal with the merits of the judicial review.

In this regard, the applicant could have challenged the decision of the Leadership Tribunal by coming directly to the Supreme Court under its inherent powers under s 155 (4) of the Constitution. The Supreme Court and the National Court have concurrent jurisdiction in this regard. The applicant did not choose to do this. He chose to go to the National Court under O 16 and that Court is seized of the matter. The applicant must complete the process under O 16 of the National Court Rules.

The applicant appears to have treated the right of appeal under the Supreme Court Act and review under s 155 (2) (b) of the Constitution as providing alternative remedies where a party may have a choice. In my view, this is wrong in law and misconceived the nature of the discretion under s 155 (2) (b).

The authorities show that where the law provides for review or appeal to the Supreme Court, the discretionary power of the Court under s 155 (2) (b) cannot be invoked without first exhausting the avenues provided for by law. In Application by Jeffrey Balakau (Amet CJ, Kapi DCJ, Los J) (Unreported judgment of the Supreme Court dated 25th October 1996, SC 529) the Court stated this principle in no uncertain terms. That was a case in which the applicant filed his appeal well outside the 40 days and was found to be incompetent. On application for judicial review under s 155 (2) (b), the Court said:

"......We would add though that this interest or right to invoke this power, whilst it exists concurrently, cannot be invoked concurrently with the right of appeal procedures enabled under subordinate statutes such as the Supreme Court Act. It is a reserve supervisory power, that is available to the Court, to be invoked in the discretion of the Court upon good grounds being established.

As with other discretionary jurisdictions, the applicant ought first to have persued his rights of appeal or review under appropriate primary legislation, and only when those avenues have been fully exhausted might he seek to invoke this reserve jurisdiction of the Court.

It would not be appropriate or permissible to seek to invoke this jurisdiction without first having pursued the rights of appeal or review under the relevant legislation."

In the present case, the applicant seeks to invoke the discretionary power of the Court without first invoking the right to appeal under the Supreme Court Act. This is a deliberate choice by the applicant and his lawyers. He cannot invoke the discretionary power under s 155 (2) (b). This is a clear abuse of the process of the court and I would dismiss it.

Consequently, it is not necessary to consider the merits of review against the decision of Sheehan J in refusing to grant leave for judicial review under O 16 r 3 of the National Court Rules.

I note that the interim order enabling the applicant to nominate for the National Elections was made subject to the result of the review before us. The nomination is now rendered invalid by the dismissal of the application for judicial review under s 155 (2) (b). I should point out in passing that the Chief Justice made the interim order as a single judge of the Supreme Court. Powers given to a single judge of the Supreme Court by ss 5 and 10 of the Supreme Court Act are not applicable to a review under s 155 (2) (b). Therefore, a single judge of the Supreme Court has no power to make interim orders in a judicial review under s 155 (2) (b) (Viviso Seravo & Electoral Commission v John Giheno (Unreported judgment of the Supreme Court dated 15th January 1998, SC 539). The full bench of the Supreme Court had to convene to deal with such issues (Viviso Seravo & Electoral Commission v John Giheno (Unreported judgment of the Supreme Court dated 21st January 1998, SC 555). This has been followed in Wauni Wasia Ranyeta v Masket Iangalio & Electoral Commission (Unreported Judgment of the Supreme Court dated 17th July 1998, SC562) and David Lambu v Peter Ipatas & Electoral Commission (Unreported Judgment of the Supreme Court dated 30th April 1999, SC601).

Los j. The applicant appeared before the Leadership Tribunal constituted by Sawong, J and senior Magistrates Patrick Bawai and Peter Toliken, "The Tribunal". He had 15 allegations of misconduct against him. The Tribunal took evidence and heard submissions in December 2001 and on 16 January 2002 delivered its decision. The Tribunal found the appellant guilty on counts 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 15. He was found not guilty on counts 3, 9 and 14 of misconduct in office. Count 3 dealt with failure to furnish the Ombudsman Commission (the commission) with his annual statement for the period from 14 October 1995 to 13 October 1996. Count 9 dealt with having possession of a high powered firearm while he was a passenger in a helicopter in Southern Highlands. Count 14 dealt with having in his possession a pistol and exposed same to public view in Port Moresby.

On the rest of the counts, he was found guilty. He was fined K1,000.00 on counts 1, 2, 4, 5, 6, 12 and 13. On the remaining counts for which he was found guilty that is counts 7, 8, 10, 11 and 13 he was dismissed from office as member of Parliament and Governor for Southern Highlands Province. Obviously with the new election pending, the leader would be most concerned with the counts that constitute his removal.

The applicant then applied for judicial review in OS 27 of 2002 for leave to apply for judicial review on 12 February 2002. That application was refused by the National Court on 14 March 2002 on the grounds that the applicant had not established an arguable case.

From that decision the applicant has come to the Supreme Court not on an appeal process but has sought a judicial review under section 155(2)(b) and 155(4) of the constitution as it was done in John Mua Nilkare v The Tribunal, SCA No. 46 of 1996 constituted by Los, Jalina and Andrew JJ on 12 and 17 December 1996 on review application and subsequently constituted by Amet CJ, Kapi DCJ and Los, J on 24, 25 February, 10 and 15 April 1997 – SC 536 of 1997. I consider that the question of jurisdiction was appropriately and sufficiently addressed in the Nilkare review albeit with a slight deference that is an appeal was on foot.

First and foremost it is inappropriate for a single judge to review the tribunal decision when the decision was by three judicial officers, a judge, and two senior magistrates and secondly timing is such that an applicant's right should not be affected by judicial delay. Also the applicant must know his 'fate' earlier. This is not to say that in every case the Supreme Court should invoke its jurisdiction but it must do so in proper and necessary cases to do justice. It must be remain a matter of discretion. In doing so I do pay heed to what the court had said in Avia Aihi v The State [1981] PNGLR 81 but I also do question whether the court should interpret a common law principle or a provision of a subordinate legislation to curb or limit a right of recourse to the highest court of the land, the Supreme Court. While so much time is spent arguing whether the applicant has come to the Supreme Court through right path or wrong path, his substantive right to stand for parliament is about to expire. Surely, the Supreme Court is the court of justice and not court of injustice, forever barricading itself with procedural rules.

What is the arguability of the case?

In relation to count 7, the applicant submits that he was dealt with twice for the 'same offence'. The 'same offence' is constituted by finding the leader guilty on counts 1, 2, 4, 5 and 6. Strictly in a criminal trial proper when a person has been found guilty and punished, he cannot again be punished for the same office.

On behalf of the Public Prosecutor, it was argued that the allegation no. 7 was framed as an integrity charge under section 27 of the Constitution. Well that might have been the commission's intention and view but it does not answer and resolve the submission that under the Constitution a person cannot be twice punished for the same act though that act might constitute different offences. The leader had been fined K1,000.00 for each of the 5 counts, namely, counts 1, 2, 4, 5 and 6 amounting to K5,000.00. Then he was also dismissed.

For counts 8, 10, 11 and 13, the leader has raised a basic constitutional question. That is whether a tribunal other than the court of law could deal with an allegation that a leader is guilty of an offence. The commission may be entitled to 'charge' a leader of being in possession with arrogance and display of a high powered gun in a public view and thereby putting the public in danger and thereby questioning his quality and integrity as a leader. But to say that he has breached a criminal law and hence guilty under a particular law is another thing. These are appropriate and substantive issues that he wants to address and he must be allowed to do so before the Supreme Court. I would grant him leave therefore to do so.

Salika J. I have had the benefit of reading the separate drafts prepared by Kapi DCJ and Injia J in this matter. I agree with their honours separate judgments and do not wish to add anything of my own.

Sakora J. I have had the benefit of reading the judgment of Kapi DCJ in draft form. I gratefully adopt his account of the circumstances surrounding and leading to the application and the issues by it. For the reasons his honour assigns, I agree that the application should be dismissed with costs.

I have also had the advantage of reading the brief reasons of my brother Injia J on the one issue he deals with: SCR O 11 r 9 in relation to directions where there is lack of procedural provision. I am in respectful agreement with those reasons and would dismiss the application also.

Injia j. I agree with the Deputy Chief Justice that this application is clearly incompetent and an abuse of the process of the Court and it should be dismissed.

The competency of an application brought before the Supreme Court is an important threshold issue which remains for the Court to determine throughout the proceedings. The fate of many proceedings brought before this Court has been determined on grounds of competency alone.

The applicant in the present matter acknowledges the importance of the correct procedure to bring this application when in his application filed on 25 March 2002, the first order he seeks pertains to competency. In paragraph (a) of the application, he seeks the following order:

"An order or direction under the provisions of Order 11 Rule 9 of the Rules of the Supreme Court ("SCR") that this form be deemed appropriate and sufficient to competently bring this application to the Court."

If such an order were granted, the applicant proposes to move the Application for Review under s 155 (2)(b) of the Constitution which he filed on the same day.

The application is made under O 11 r 9 of the Supreme Court Rules ("SCR") which provides:

"Division 6 – Lack of Procedural Provision"

9. Where a person desires to take any step in proceedings under these rules and the manner or forms of the procedure is not prescribed, the person may apply to a judge for directions."

It seems to me that the applicant has misread SCR O 11 R 9. This rule applies where "the manner or form of the procedure is not prescribed under the rules." SCR O 10 prescribes the manner and form for the institution of an appeal against a decision of the National Court under O 16 rule 3 of the National Court Rules ("NCR") refusing leave.

SCR Order 10 provides:

"Order 10 – Appeal from Orders made under Orders 16 and 17 of the National Court Rules

Division 1 – Institution of Appeal

1. An appeal under this Part shall be instituted by a notice of motion.

2. The notice of motion and all subsequent proceedings shall be entitled 'In the Supreme Court of Justice' and shall be entitled between the party as appellant and the party as respondent.

3. The notice of motion shall –

show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8;

have annexed –

(i) copies of all documents which were before the Judge of the National Court appealed from,

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar,

(c) be in accordance with form 15;

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry.

NCR O16 r 11 supplements SCR O 10. It provides:

"An appeal by way of motion under Order 10 of the Supreme Court Rules to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review."

It is arguable whether an appeal under the Supreme Court Act against a decision of the National Court under NCR O 16 r 3 lies as of right or by way of leave: see Ombudsman Commission v Donohoe [1985] PNGLR 348. In my view, the SCR made under the Supreme Court Act clearly permits any person aggrieved by a decision of the National Court made under NCR O 16 r 3, to institute an appeal against the decision, as if it were of right. That is the position taken by the Supreme Court in the Application by Jeffrey Balakau, SC 529 (1996).

In that case, the applicant had applied to the National Court under NCR O 16 r 3 for leave to apply for judicial review of the Ombudsman Commission's referral of the applicant to the Public Prosecutor for prosecution on various allegations of misconduct. Upon refusal of leave by the National Court, he filed a late appeal under SCR O 10. He then filed an application for review under s 155(2)(b) of the Constitution. The Court ruled that the appeal was incompetent. In addressing the competency of the application under s 155(2)(b), the Court said that the jurisdiction in s 155 (2)(b) cannot be invoked by an aggrieved person until he has fully exhausted his statutory right of appeal. As the Court stated in its judgement at page 7-8:

"In the end result, though his right of appeal under the Supreme Court Act has been extinguished, nevertheless he still has interest and thus standing to make application to the Supreme Court to invoke its inherent power to review the judicial decision of the National Court, which the applicant is affected and aggrieved by.

We would add though that this interest or right to invoke this power, whilst it exists concurrently, cannot be invoked concurrently with the right of appeal procedures enabled under subordinate statutes such as the Supreme Court Act. It is a reserve supervisory power that is available to the Court, to be invoked in the discretion of the Court upon good grounds being established.

As with other discretionary jurisdictions, the applicant ought first to have pursued his rights of appeal or review under appropriate primary legislation, and only when those avenues have been fully exhausted might he seek to invoke this reserve jurisdiction of the Court.

It would not be appropriate or permissible to seek to invoke this jurisdiction without first having pursued the rights of appeal or review under relevant legislation."

In my view, the present applicant deliberately chose not to pursue his appeal rights under SCR O. 10 and he filed this application for reasons of an expedited hearing, when the time limited for filing an appeal was current. This application is clearly incompetent for the same reasons given in Jeffrey Balakau. This is a clear abuse of s 155(2)(b) of the Constitution and the appeal procedure in SCR 10(1) which warrants this court to strike out the application.

The formal order of the Court is that the application is dismissed with costs to the Public Prosecutor.

Lawyers for the applicant: Maladinas.
Lawyer for the Public Prosecutor: Chronox Manek.