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Nobetau v Bougainville Executive Council (BEC) [2020] PGNC 408; N8670 (30 November 2020)

N8670

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 639 OF 2019


BETWEEN:
JOSEPH NOBETAU
First Plaintiff


AND:
BOUGAINVILLE EXECUTIVE COUNCIL (BEC)
First Defendant


AND:
COLONEL THOMAS RAIVET
Second Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Miviri J
2020: 21st September, 30th November


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of motion Substantive –Order 16 Rule 1 NCR – Judicial Review – chief Secretary Bougainville Autonomous Government – Bougainville Executive Council – Termination of – Whether contrary to sections 147 (1) (2) & 190 of Bougainville Constitution – Whether Certiorari appropriate – Declaration – Discretionary – Error of Law – breach of natural Justice – unreasonable – material relied sufficient – balance discharged – Judicial Review sustained granted – liberty to seek damages accorded – cost follow event.


Cases Cited:


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

Coecon Ltd (Receiver Manager Appointed) v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182

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:


G. Salika, for plaintiff
J. Haiara, for First & Second Defendants


RULING

30th November, 2020

  1. MIVIRI, J: This is now the ruling after hearing arguments for and against on the plaintiff’s substantive notice of motion for judicial review filed 17th September 2019. He has instituted this proceeding aggrieved against the decision of his termination by the first defendant. He successfully obtained leave on the 14th October 2019 to institute this proceeding. From which he seeks the following equitable remedies:
  2. 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 plaintiff was removed as the Chief Secretary to the Bougainville Autonomous Government. 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.
  3. The material facts undisputed and established are that the termination was swift and immediate. It flowed from a meeting concluded with removal of the plaintiff as Chief Secretary, a Constitutional office of Bougainville not a casual employed on a weekly oral contract. And with a letter of that date 23rd August 2019 to immediately process and to pay the remainder of his contractual entitlements. And this is of the Chief Secretary who had served Bougainville since October 2016 up to the date of removal almost 3 years in the making. What could have prompted such immediate removal and if so was it allowed by law?
  4. For a start the termination was imposed upon, and there is no apparent dialogue consistency and consensus between the plaintiff and the defendants. On another level the defendants mitigated their wrong by the offer and the payment of K660, 692.80 constituting his final entitlements and benefits for the remainder of his employment contract. Which is now for all intent and purposes parked in the Trust Account of the Registrar of this Court. Should the action fall towards the plea of the plaintiff that is available as it is specifically designated to him. It is calculation of what is owed to him emanating from the Contract that was prematurely terminated hence the figure as it is. It is very strong evidence which falls against the defendants when considering the totality of their actions here against him. Liability has been established and to an extent quantified when the measure according to civil law is invoked. In a way it has unnecessarily dragged into this court room when the defendants have volunteered of their own accord to the payment. It would compose an integral part of the assessment of damages of the wrong committed: Coecon Ltd (Receiver Manager Appointed) v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February 2002). It helps because it is specifically an admitted fact running fundamental to the cause of the plaintiff. And which is strong because the defendants have not only quantified but have made payment named to the plaintiff. This proceedings for all intent and purposes should have been the subject of an amicable settlement between the parties and should not have trodden into the courtroom.
  5. This is particularly even clearer by reference to the Constitution of Autonomous Region of Bougainville section 147 (1) that the Head of the Bougainville Public Service by subsection (2) “The Head of the Bougainville Public Service shall be appointed (and may be suspended or removed from office for just cause) by the Bougainville Senior Appointments Committee”. The language is mandatory and significant that the appointment is exclusive to the prerogative of the Bougainville Senior Appointments Committee and no other. And the definition of section 11 (1) (2) of the Bougainville Public Services (Management and Administration) Act 2014 establishes and declares the head of the Bougainville Public Service as the Chief Secretary. The combined effect in law is the Chief Secretary ‘the Plaintiff here can only be removed from that post by the Bougainville Senior Appointments Committee. It is they who inserted him into that chair. He can only come out of it by their lips no one else is empowered or installed with the prerogative to remove him from that office. Ironically if the defendants are not the Bougainville Senior Appointments Committee they have seriously breached the Constitution of Bougainville with the related Act of the Assembly in the manner described.
  6. Because the evidence set out above is that the plaintiff was not the subject of removal in accordance by the Bougainville Senior Appointments Committee. In his affidavit tab 7 of the Review Book filed 2nd September 2020 he deposes that he was appointed by the Bougainville Senior Appointments Committee in October 2016. On the 13th March 2019 Hon Robert Hamal Sawa MHR Minister for Public Services wrote to Hon Chief Dr. John Momis ABG President and Chair of the BSAC a petition for alleged misconduct and misbehaviour. And on the 08th April 2019 Robin Wilson MHR Minister for Finance and Treasury wrote to Hon. Chief Dr. John Momis ABG President and chair of the BSAC a supplementary Petition against the Plaintiff. Which was informed the plaintiff by letter of the 11th April 2019 by the President Hon. Chief Dr. John Momis who asked for a show cause notice as to why he should not be referred to the BSAC. This is responded to by the plaintiff. On the 08th May 2019 the BSAC determines that the petitions failed to demonstrate misconduct and decided against referral to the Board of inquiry. And recommended that the First defendant seek to resolve what appeared to be fundamentally personal based rather than professional conduct of issues.
  7. Had this being the strength of the evidence in his removal there would not have been any impropriety displayed of his removal of the plaintiff. Because even the dialogue by Hon Raymond Masona Acting President of the ABG annexure “JN5” on the 14th June 2019 seals what the plaintiff makes on the 2nd July 2019 “JN6” to the Acting President Hon. Raymond Masona copied to the members of the First defendant and the BSAC that he was seeking a meeting with them despite because “there remains some concern regarding the relationship between himself and some members of the BEC”. As Chief Secretary this is a situation that I seek to rectify, as I recognize that as we approach the date of the referendum and seek to cement initiatives to support the peace process, that it is important that I have a strong relationship with the BEC and the Public Service be focused on supporting the Government. Simply put, I do not wish to be a distraction, and it is my intention to do all that I can to support you in your capacity as Acting President along the BEC.”
  8. This evidence cannot be the basis by the Constitution or otherwise for the termination of the plaintiff. What is settled is that the matter is rooted in personal feud with some members of the BEC rather than a basis in law properly based out by the BSAC upon whose views the BEC has simply endorsed. Hence there is no procedural irregularity offensive to the law. In particular and reinforced by Constitution 147 subsection (3) “A Bougainville Law shall make provision for the title of the office, term of appointment, terms and conditions of the employment and other matters relating to the office of the Head of the Bougainville Public Service” which is the Bougainville Public Services (Management and Administration) Act 2014. At section 7 of which is established the head of the Bougainville Public Service being the Chief Secretary under section 11 establishing that office. He by subsection (2) shall be appointed by the Bougainville Senior Appointments Committee (Appointments and Disciplinary Procedures of Bougainville Constitutional and Senior Office Holders) Act 2011. Which is now the Bougainville Senior Appointments Act 2014 & Bougainville Senior Appointments (Amendment) Act 2018. And it is the Bougainville Senior Appointments Committee who may suspend him or remove him from that office. Their composition is in accordance with Part 3 of that Act. And their powers and functions cannot be exercised by anyone else let alone the BEC. Part 4 is the application of that Act section (e) to the Chief Secretary. Section 22 (2) “Constitutional provisions of the Act. The procedure for interdiction or removal from office of a Bougainville Constitutional office holder to whom this part applies is, as set out in Section 190 of the Bougainville Constition”.
  9. “Section 190 Removal from office of Certain Bougainville Constitutional Office holders

(1) This section does not apply to the Chief Justice of Bougainville, a Bougainville Judge or Acting Judge, the Bougainville Public Prosecutor, the Bougainville Public Solicitor or the Head of other Bougainville Courts for whom provision for removal from office is made in Part 9 (administration of justice).

(2) A Bougainville Constitutional Office-holder may be removed from office only –

(a) for inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or

(b) for misbehaviour; or

(c) in accordance with Part 13 (Leadership Code) for misconduct in office; or

(d) for a breach or contravention of a condition of employment laid down in this Constitution.

(3) Where the Bougainville Senior Appointments Committee is satisfied that the question of the removal from office of a Bougainville Constitutional Office-holder should be investigated, it shall –

(a) by written notice to the Chief Justice of Bougainville, request that he appoint a tribunal consisting of –

(i) a Bougainville Judge (who may be himself) and a member of another Bougainville Court established under Section 126 (establishment of other courts); or

(ii) if no other courts have been established under Section 126 (establishment of other Courts), by a Bougainville Judge (who may be himself),

to hear and determine the matter; and

(b) refer to the tribunal the matter of the removal from office of the Bougainville Constitutional Office-holder together with a written statement of the reasons for its opinion, for the tribunal to investigate and report back to it whether or not the Bougainville Constitutional Office-holder should be removed from office.

(4) The tribunal shall make due inquiry into the matter referred to it without being restricted by legal formalities or the rules of evidence and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

(5) Where the tribunal reports that the Bougainville Constitutional Office-holder should be removed from office, the Bougainville Senior Appointments Committee shall –

(a) by notice in writing to the Bougainville Constitutional Office-holder concerned remove him from office; and

(b) send a copy of the notice under Paragraph (a) to the Speaker for presentation to the House of Representatives.

(6) Where a question has been referred to a tribunal under this section, the Bougainville Senior Appointments Committee –

(a) may suspend the Bougainville Constitutional Office-holder from office pending the report of the tribunal; and

(b) may remove the suspension at any time; and

(c) hall remove the suspension where the tribunal does not recommend dismissal from office,

and unless otherwise determined by the Bougainville Executive Council, the suspension shall be on full pay.

(7) Where, at the time of the suspension, a suspended Bougainville Constitutional Office-holder was dealing with any quasi-judicial proceedings he may continue and complete these proceedings unless the Bougainville Senior Appointments Committee orders otherwise.

  1. This is a very significant fact in law addressing the importance of that office as a Constitutional office. No evidence has been led to the contrary except that there has been non-compliance of the provisions of the Bougainville Constitution set out above in the case of the Plaintiff. Specifically, he was not the subject of a referral with statement of reasons to a Tribunal constituted under those provisions relating. Nor was he suspended in accordance and a hearing conducted in the allegations referred. There was no due enquiry conducted by such a tribunal and findings made which was removal from office that was conveyed to the Bougainville Senior Appointments Committee who by notice under section 190 (5) caused the Constitutional Office holder here the Chief Secretary the plaintiff to be informed of his removal from that office pursuant to the grounds set out in section 190 (2) (supra). That it had been sustained that he was not able to perform his duties or that he had misbehaviour sustained, or that he had misconducted as a leader in office, or that he had breached a condition of his employment warranting his removal from it. This is not the evidence I find before this court. It is damning against the defendants and is very strong wind in the sail of the plaintiff’ s cause.
  2. It is undisputed nor is it the evidence here and annexure “JN8” is from the office of the President minister responsible for Media, Communication and inter governmental affairs dated the 23rd August 2019 to the members of the Bougainville Executive Council subject Immediate termination of Mr Joseph Nobetau as Chief Secretary to the Autonomous Bougainville Government a submission to the Council for the recommendation to the Bougainville Executive Council for immediate termination of Mr Joseph Nobetau’s Contract as Chief Secretary. And to pay the balance of his contract as chief Secretary. This is clear it is not emanating from a decision made by a tribunal composed and appointed in accordance with section 190 (3) of the Constitution. Rather a policy submission which has been carried out as evidenced above. There is no evidence to the contrary and it is established that plaintiff has not been the subject of a referral to a tribunal from which has emanated the decision to remove conveyed to the Bougainville Senior Appointments Committee who has played out section 190 (2) and (5).
  3. Further it is not in accordance with that procedure to appoint the second defendant as the Acting Chief Secretary to the ABG. So for all intent and purposes set out above his appointment primae facie is not in order of the law. It is also worth noting section 147 (4) of the Constitution that, “The Bougainville Senior Appointments Committee is not subject to the directions or control by any person or authority and shall exercise its powers and functions in a non-partisan manner.” Primarily it is the sole body imposed curtailed to conduct its functions, obligations, and responsibilities under the BSA Act with independence outright from any other person. And it flows that by section 37 of the BSA Act the only authority empowered in the removal of Bougainville senior office holders is the BSAC. Section 37 is specific, “(1) the committee must remove a senior office holder from office if it receives a recommendation that the office holder be removed from the office, made by- (a) A board of inquiry, following investigations conducted under section 33; or (b) A tribunal exercising powers under section 27 of the Organic law on the Duties and Responsibilities of leadership of the National Parliament; or (c) The Bougainville high Court, exercising powers under Bougainville law made to provide for the matters under section 173 of the Bougainville Constitution.”
  4. Because the functions of the First Defendant by section 85 (1) of the Constitution are that, “(1) The Bougainville Executive Council and the members of the Council, have such powers, functions, duties and responsibilities in relation to the executive functions of the Autonomous Bougainville Government as are conferred or imposed by or under this Constitution or Bougainville Law, or as are delegated in the Council”. This is specific vesting and they do no have powers in law to do what was done in the case of the plaintiff. They acted ultra vires and contrary to law. They committed serious breaches of the law in the way they acted to remove the plaintiff from the post of Chief Secretary to Autonomous Bougainville Government.
  5. There is therefore procedural ultra vires made out particulars set out above. Further there is substantive ultra vires in the way set out above and Judicial review lies pursuant against the defendants particularly the first defendant. He has been demonstrated to the required balance beyond preponderance that he has offended the Constitution of Bougainville and related laws set out above. Even before the matter has knocked on the doors of the Court he has of his own volition extended the hand of reconciliation in the payment of K660, 692.80 constituting the final entitlements and benefits for the remainder of the employment contract of the plaintiff. What remains at the prerogative and the discretion of the plaintiff is to itemize any other costs arising directly from the actions of the defendants to have settlement made out this is now very strong evidence against the plight of the defendants against the plaintiff if the matter were to proceed in another arena from here.
  6. 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 defendants upon the plaintiff. Procedurally they have seriously and arrogantly defied the dictate of clear law by the Bougainville Constitution and related Acts of the Bougainville House of Representatives for which they are liable for. The plaintiff has successfully discharged and affirmed by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). As it is plaintiff has satisfied all requirements to the required balance, the grant of judicial review has been discharged. This is not a case of a busy body(s) mingling into Judicial review by Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. 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 been discharged to the required level by the plaintiff. Accordingly, I am warranted to accord judicial review as pleaded in the substantive notice of motion.
  7. Consequentially deriving from Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008), I grant leave for the plaintiff to convert if he so desires and discretions for the conversion of this proceedings for a writ of summons or originating summons for damages to be assessed determined and paid. Alternatively, it is open for the defendants to as they did make additional payment to the K660, 692.80 in the court account settling.
  8. As to the K660, 692. 80 I order that to be paid to the plaintiff forthwith emanating from this action as that is the evidence as to its payment in the first instance. It remains in that manner and any other matter arising as to damages is a matter in the discretion of the plaintiff as he sees fit. I make no order as to reinstatement or otherwise.
  9. In respect of costs of the proceedings that will be on a party to party basis to follow the event if not agreed to be taxed. And the basis is all set out in this Judgement the action should have been avoided at all costs both for and against.
  10. The formal orders of the court are:

Orders Accordingly.

__________________________________________________________________

Young & Williams Lawyers: Lawyer for the Plaintiff/Applicant

Haiara’s Legal Practice: Lawyer for Defendants

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