O'Neil v Bidar [2019] PGNC 490; N8903 (1 November 2019)

N8903

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 720 OF 2019

HON. PETER O'NEIL
Plaintiff

V
COSMOS BIDAR in his capacity as Principal Magistrate of Waigani Committal Court.
First Defendant

AND
KILA TALI in his capacity as Detective Senior Constable & Investigating Officer
Second Defendant

AND
DAVID MANNING in his capacity as Acting Commissioner of Police of Royal Papua New Guinea Constabulary
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2019: 31^st October

PRACTICE & PROCEDURE – Judicial Review & appeals – Amended Originating summons Order 16 Rule 3 (2)NCR – Amended Application for Leave – Amended Statement of Facts Order 16 Rule 3 (2) (a) NCR – Amended Affidavit verifying facts Order 16 Rule 3 (2) (b) NCR – affidavit in support – Notice of motion defendants – dismissal of proceedings – warrant subject of proceedings withdrawn – Section 197 & 155 Constitution – no utility to maintain action – leave for Judicial review –not availed – each party to bear its own costs.

Cases Cited:

Tambe v Tamsen [2004] PGNC 66; N2714#disp0" title="\"> N2714 N2714#disp2" title="\">
Wartoto v State [2015] PGSC 1; SC 1411
Smith v Minister for Lands [2009] PGSC 60; SC973
Pala v Bidar [2016] PGSC 33; SC1515#disp0" title="\"> SC1515 SC1515#disp2" title="\">

Counsel:

G. Shepperd & P. Tabuchi, for Plaintiff
T. Tanuvasa & I Mugugia, for Defendants

RULING

1^st November, 2019

1. MIVIRI, J: This is the Ruling on the application for leave for Judicial review by the plaintiff/applicant against the decision of the first defendant to grant a warrant for his arrest referenced COM: 1583/2019: CB: -/2019.
   
2. Whilst this matter was adjourned 16^th October 2019 then extended 21^st October 2019 and pending hearing of this leave application on the 28^th October 2019 pursuant to section 197 (2) of the Constitution and section 22 of the District Courts Act the subject warrant was withdrawn by the defendants. Which has led to the amended Originating summons, the amended statement including the amended affidavit verifying facts intending to incorporate what has transpired.
   
3. The plaintiff/applicant has reacted to the Notice of motion of the defendants filed 30^th October 2019 seeking essentially to dismiss the proceedings as there is no utility because the subject warrant has been withdrawn. It has been served on Tuesday the 29^th October 2019 on Plaintiffs lawyers barely making the three clear days requirement under Order 4 Rule 42. What should have followed from this would have been response by the Plaintiff. He has sought to amend his originating summons with the Statement to take account of that fact. And has proceeded in that way. Which has the defendants objecting and submitting the court not rely on that amended originating summons and the statement relying on the rules.
   
4. The defendants relied on the rules Order 16 Rule 6 of the National Court Rules, “the rules” to go by way of an amended statement pursuant to Order 16 Rule 3 (a) of the Rules. That the amended statement could not be relied on in the matter. The plaintiff/applicant countered that it was in response to the Notice of motion of the defendants for dismissal dated the 30^th October 2019. Because effectively there were now two decisions by the defendants effecting the plaintiff/applicant. The initial to get the warrant for his arrest and the latter to withdraw that warrant. It was supported by the affidavits of Acting Commissioner of Police David Manning dated the same deposing the fact that the subject warrant was now withdrawn by the defendants. Therefore, the defendants argued that there was no utility in maintaining the proceedings for leave for judicial review. Effectively it brought the proceedings to a close because no reasonable cause of action was disclosed. The proceedings were frivolous, vexatious and an abuse of process. This decision is compatible with O'Neill v Eliakim [2017] PGSC 53; SC1654 (15 December 2017) In this decision plaintiff/applicant is concerned about the decision to withdraw the warrant which in my view would work two-fold that the defendants have accepted that their breach of the law and now will amend and come within the realm and ambit of the law. Or effectively rest in that matter which will give effect to other areas of the law at the discretion of the plaintiff/applicant.
   
5. The plaintiff/applicant submitted that stay granted by this court on the 21^st October 2019 extended to the 25^th October 2019 remained. Because the National Court was seized of the matter. It had the jurisdiction in the matter. Therefore, the withdrawal of the warrant of arrest by the defendants was ultra vires. Therefore, justification for the amendment to the statement. It was the actions of the defendants that prompted the amendments in reply.
   
6. I have considered both arguments fully and adjudge that the court has a very wide discretion considering the rules that are relied on by the parties: Tambe v Tamsen [2004] PGNC 66; N2714#disp0" title="\"> N2714 N2714#disp2" title="\"> (16 November 2004). I ask myself will the allowance of the amendment determine the controversy between the parties here. And will the amendment help to correct any defect in the proceedings? And will there be real prejudice or injustice to the other party? If so, can the other party be compensated by costs for the allowance of the amendment? Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings? Generally, where do the interest of Justice lie in the matter? Is the proposed amendment efficacious that is it a proper amendment? In this regard it is important to set out the relevant excerpts of the Order 16 r 6(2) and (3):-

"(2) The Court may on the hearing of the summons allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) Where the Applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party."

7. Effectively no amendment was sought pursuant to Order 16 Rule 6 of the National Court Rules, “the rules” to go by way of an amended statement pursuant to Order 16 Rule 3 (a) of the Rules. But given the gravity of the matter at hand both for and against it was important that it was expedited and the interest of Justice paramount to both be considered on the basis that Justice delayed was justice denied. In any case it benefitted both parties to deal with the matter as it unfolded without recourse to adjourning which was due both parties in the light of the fact that notice of motion by the defendants prompted the plaintiff/applicant to take account and come by way of the amended originating summons, the amended statement including amended affidavit verifying the facts. In all fairness if one side needed an adjournment both sides needed given what is set out above. But giving accord to the rules here did not substantially in my view prejudice both parties. An expedited hearing was open given the facts and circumstances of the case.
   
8. Particularly where in the course of the adjournment overnight in the currency of the Stay order that was granted in respect of the warrant of arrest the defendants elected to go and to withdraw it from the District Court by their actions all jointly and severely. In my view the matter was no longer in the jurisdiction of the defendants individually or severely. Its use execution in law was the subject of the beginning of an enquiry to be, it was at the doorstep of any inquiry to be. In all fairness and respect it ought to have been left as it were stationary where it was parked. Its movement has led to a flow on effect in the proceedings. Is it so bad and extreme that sanction in law are taken out against the parties offending? Where would that leave the initial underlying dispute in the matter and the proceedings - would it expedite or procrastinate?
   
9. Given the issues posed from both sides of the matter it would not be in the interest of Justice to pursue what is readily in view by strict read of the rules adjournment and further affidavits on either side but to continue as it has unfolded. In the prerogative of this court the extreme measure of contempt of court against the offending party or parties. That is an extreme sanction open given the facts but would the overall and paramount interest of Justice considering all be served if the court were to proceed in that way? Constitutionally the Court is seized of the matter it is in the realm and domain of the court and the order is current has not been set aside nor varied and is effectual for all intent and purposes against whom soever seeks to tamper as here. If this is where the court stopped then Justice on the broad for and against all will not be served all. It is therefore an intricate step not in haste of what is overt and protruding. Because processes of law are designed in the ultimate to serve justice not reoccurrence. In my view that includes the application and interpretation of law as is the case here. Particularly where this is intended for leave to review: Smith v Minister for Lands [2009] PGSC 60; SC973 (1 June 2009).
   
10. What is ultimate and underlying here is the subject warrant of arrest referenced COM: 1583/2019: CB: -/2019 heart of all before that court and now this court in a row drawing time money resources man hours but where should and where must it lead to at the end of the day. The fate of a citizen like any other citizen for the same, a former Prime Minister, current serving member of Parliament, member of his people of Ialibu Pangia of recent hinges on its execution or otherwise. His life liberty as a fellow citizen and a person who has sacrificed to serve this nation with his repute and standing built over time through sweat and sacrifice is there on the draw card of the warrant by the defendants.
    
11. Is this a case where civil proceeding is stopping or intended to stop a criminal proceeding as in Wartoto v State [2015] PGSC 1; SC 1411 (27 January 2015). In my view it is not the case here. The intent is to examine the legality if the warrant by which the citizen is subjected to under section 87 of the Criminal Code, official corruption where what has been intended by the police the defendants is to heed section 87 (2) of the requirement that a person cannot be arrested without a warrant for the offence. Here the allegation is that as Prime Minister accused diverted a large amount of money intended for a health facility to a place other than that facility. It is a very serious allegation. Because it draws that he used his official position as Prime Minister for an illegal or unlawful purpose. And hence the requirement of that section for a warrant to bring the accused in. That is the origin of this proceedings effected by the defendants.
    
12. It is section 197 the Constitutional basis upon which the Acting Commissioner has acted. In so doing he has discharged to preserve peace and good order. And to maintain as necessary enforce the law in an impartial and objective manner without fear or favour. It is his function to charge as he sees fit but according to law exercised by due diligence in respect of the offence before him here the warrant and the subject of the warrant in all other matters concerning he is not subject to control and directions by anyone. If it is his discretion without fear or favour that he should exercise to withdraw the warrant as he has done here, he has done that even if it means consequences that this court can take upon him. The same fate meets the learned Magistrate Cosmos Bidar who has gone ahead without fear or favour and exercised his duty as a judicial officer to uphold the application to withdraw the warrant. And the continuity is the notice of motion by the defendants to ask dismissal of the proceedings because the warrant is now not there.
    
13. In my view the balance is whether that withdrawal should be allowed. I am mindful of the fact that the Judicial powers of the people by section 158 rests upon the shoulders of this court. And in its exercise this court is obliged to give effect to the paramount consideration in the dispensation of Justice. What is that given the facts and circumstances of this case here. By section 157 the court is independent of anyone in the way that it dispenses Justice. And the same is so of the lower judiciary here with the learned Magistrate defendant. But clearly, he has intruded into the jurisdiction of the National Court in the matter. When stay was ordered in it.
    
14. Section 155 of the Constitution gives the basis that it is an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. This includes taking into account here over-riding considerations of public policy in the special circumstances of a particular case. And I have set out to a large extent these facts above it need not be repeated that there are serious public policy issues at large that I must take account of in these proceedings in the exercise of the judicial power of the people. This case has special circumstances consideration apparent and identifiable that must be heeded. I take due account of all matters for and against in the decision I take in this matter.
    
15. Therefore, in all the circumstances the court will not sanction the motion taken by the defendants to withdraw the subject warrant from the proceedings referenced COM: 1583/2019: CB: -/2019 in the District Court before his worship Cosmos Bidar the first defendant named in these proceedings. Further the court will not insist and pursue its jurisdiction in the matter given all that I have set out above meaning that the warrant for all intent and purposes is now withdrawn by the exercise of the Constitutional powers under section 197 by the second and third defendants. The overriding considerations are to give effect to the Constitution and the powers by the people it gives to all Constitutional offices including this court by virtue of section 155 of the Constitution. Both section 155 and 197 must run parallel to give effect to the supremacy of the Constitution under section 11. There ought to be no inconsistency or contradictions one from the other. I take due account of section 41 proscribed Acts that it is valid by law in what I am called to do but given the facts and circumstances which I have set out above it will not be the case of the court insisting strictly on its powers of enforcement and jurisdiction to cease the matter off from the defendants. Consequently, the decision taken to withdraw stands without sanction against. On the converse, I am mindful of the fact and law under section 37 Protection of the law and 42 liberty of the person of the Constitution for and in favour of the subject of the warrant Honourable Peter O’Neil Member of Parliament. This is not to say that the law gives credence to status colour creed sex and religion in its application. Because that is not the case here in the application and interpretation that is made here given: Pala v Bidar [2016] PGSC 33; SC1515#disp0" title="\"> SC1515 SC1515#disp2" title="\"> (21 July 2016).
    
16. It follows that the application for leave will not be considered as the subject the warrant of arrest referenced COM: 1583/2019: CB: -/2019 is now withdrawn and is not before the court to warrant the hearing on leave. It is the linchpin to the hearing of leave. The utility is not there to proceed to hear as what an arguable case is will come from the continued existence and its effect on the plaintiff /applicant. Further the standing of the plaintiff will not be affected as the subject that saw him in this way is no longer there for all intent and purposes. The court is mindful of the decisions of O'Neill v Eliakim (supra) and Pala (supra) and know where the path has been taken in that in law. They are self-explained it need not be the case with this know how to follow that path again.
    
17. The applicant/plaintiff has not delayed in his application for leave he is well within time and indeed avenues in law. This will be considered in full if the Warrant the subject of this proceeding is there. It is no longer there. Justice will not be served to continue along the path for Judicial review because it will serve no utility. The motion of the defendants is granted that these proceedings are dismissed forthwith.
    
18. Because this proceeding were amended to include the decision to withdraw challenged by the plaintiff/applicant that too will serve no utility to maintain because unless it is evidenced by the example that counsel gave of filing a Nollie Prosequi and then formally putting the Indictment against the Accused, which is clearly an abuse, there really is no utility to maintain that proceeding also. Both are interrelated, and evidence interrelated and would be better dealt with together.
    
19. This is in effect up lifting the stay because the subject warrant is no longer there against the applicant/plaintiff. By withdrawal at the discretion of the defendants it is no longer active against the applicant. Any consequence that flowed from it including arrest or incarceration by its effect is not there anymore. Consequently, any actions taken based on it from now henceforth will be unlawful.
    
20. For the reasons that have been set out above each party will bear its own costs ordering indemnity will not be within the facts set out above. There is fault each way in equal proportion and therefore each will bear its own costs of the proceedings.
    
21. Application for leave for Judicial review is refused in both decisions of the defendants in the issuing of the warrant and in its withdrawal.
    
22. Each party will bear its own costs

Orders Accordingly.

__________________________________________________________________

Niuage Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants