N9015

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 286 OF 2020

BETWEEN:
MATHEW MINAPE
Plaintiff

AND:
TERA DAWAI, a Senior Magistrate of Lae District Court
First Defendant

AND:
PETER YAMBUN, a Senior Police Officer attached with
Lae Police Station
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
CONSORT SHIPPING LIMITED
Fourth Defendant

Lae: Dowa J
2021: 9th and 21st July
JUDICIAL REVIEW – review of decision made by the district Court to issue a search warrant– breach of section 6 of Search Act, plaintiff seeks orders in certiorari to bring into court and quash decision of first respondent in issuing the search warrant - -Issuing of a search warrant - Offence being committed or about to be committed - Tests to be satisfied before a search warrant can be issued - Discretion of the Court. whether plaintiff is entitled to judicial review and the reliefs sought in the notice of motion
Cases Cited

Kekedo vs. Burns Philip (PNG) Ltd [1988-1989] PNGLR 122
SCR No. 2 of 1980, Re s14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50
Esso Highlands Ltd vs. Bidar (2014) N6386, 
Goi vs. Bank of South Pacific Limited (2020) N8271.

Counsel:

J. Aku, for the Plaintiff
B. Tomake, for the First, Second & Third Defendants
N. David, for the Fourth Defendant

RULING

21st July 2021

1.	DOWA J:	This is a ruling on an application for Judicial Review by the Plaintiff in respect of a decision made by the First Defendant, a Magistrate of the Lae District Court, on 13th July 2020 to issue a Search Warrant.

2.  	The Search Warrant was issued to the Second Defendant, a Senior Police Officer to conduct search at the Plaintiff’s premises at Allotment 86 Section 2 Markham Road, Lae and removed 20 feet empty containers.

3.   	The container was removed and relocated to the Fourth Defendant’s premises.

APPLICATION

4.	By Notice of Motion, the Plaintiff seeks the following orders:

(1)		A declaration that the decision of the first defendant made on 13th 	July 2020 to issue the search warrant to the police was made in 	breach of section 6 (1) of the Search Act.

(2)		A declaration that the decision of the first defendant made on 13th 	July 2020 to issue the search warrant to the police is null and void 	forthwith.

(3)		A declaration that the search warrant issued on 13th July 2020 is 	null and void forthwith.

(4)		An order in the nature of certiorari to bring up to the National Court and to quash the decision of the first defendant made on 13th July 2020 to issue the search warrant to the police.

(5)		An order that Consort Shipping Ltd, the second Defendant and his police officers return the container of the plaintiff to the property of the plaintiff within 7 days, from the date of the order, in the same manner as they have removed the container from the property of the plaintiff and relocated it to the yard of Consort Shipping Ltd.

(6)		A permanent injunction granted against the second defendant and 	the members of the police force to enter the property of the plaintiff 	or interfere with the plaintiff or his employees and tenants on the 	property from peaceful use and enjoyment of the property.

(7)		An order for damages for breach of constitutional rights of the 	plaintiff, which damages shall be assessed by the court.

(8)		An order for cost of the proceedings on a solicitor client basis.

(9)		Such further or other orders that the court considers appropriate in 	the circumstances.

DOCUMENTS

5.	The Plaintiff relies on the following documents:
	
a)	Notice of Motion filed 16/11/2020;
b)	Statement under Order 16 Rule 3 of the National Court Rules filed 09/09/2020,
c)	Affidavit of Mathew Minape filed 09/09/2020.
			
6.	The Fourth Defendant relies on the following affidavits:

a)	Affidavit of Meshach Lakatani filed 25/02/2021;
b)	Affidavit of Mary-Ann Ketan Rai filed 24/02/2021;
c)	Affidavit of Meshack Lakatani filed 28th May 2021.

THE FACTS

7.    	The facts giving rise to the application are this: The Second Defendant applied for Search Warrant in proceedings SW No. 156/2020 on 13th July 2020.  He relied on his own affidavit sworn and filed on the same day, 13th July 2020.  The First Defendant issued the Search Warrant to the Second Defendant on the same day.  

8.   	The Second Defendant and other members of the police force entered the premises of the Plaintiff, searched, and seized the container out of the Plaintiff’s yard and relocated to the yard of Consort Shipping, the Fourth Defendant.

9.	The Plaintiff applied to the District Court to set aside the Search Warrant but was refused. The Plaintiff applies to this Court seeking judicial review of the Order of the First Defendant.

ISSUE

10.    	The main issue for consideration is whether the decision of the District Court Magistrate made on 13th July 2020 to issue a search warrant to the police to search the Plaintiff’s premises and retrieve the empty container and return it to Consort Shipping Ltd was made in compliance with section 6 of the Search Act.

           LAW ON JUDICIAL REVIEW

11.	The relevant rule is Order 16 Rule 1(1) of the National Court Rules, which provides:

“(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.”

12.	The law on application for Judicial Review is settled.  In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court said that:

“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

13.	The Supreme Court in that case further stated that:

“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion.  Judicial review is concerned not with the decision but with the decision-making process.”

GROUNDS

14.	The grounds for review are summarized in the following.

a)	Failing to consider relevant considerations.
b)	Errors of Law
c)	Denial of Natural Justice
d)	Ultra vires
e)	Wednesbury’s principle of Unreasonableness

15.  	The Plaintiff submits that, the First Defendant failed to consider relevant considerations when he issued the Search Warrant. The Informant Peter Yambun was not a proper person to depose the factual matters in the supporting affidavit.  He had no personal knowledge of all the allegations of a stolen empty container.  The evidence of Peter Yambun did not contain any particulars of offence committed by the Plaintiff.  

Mr. Aku submits that the order for Search Warrant breached section 6 of the Search Act.  The decision of the learned Magistrate also breached sections 44 (Freedom from Arbitrary Search and Entry) and section 49 (Right to Privacy) of the Constitution. Mr. Aku summits further that the allegation of an unreturned container in a normal business transaction was civil in nature and did not require a search warrant.  The First Defendant 	acted ultra vires his powers and in all the circumstances, the decision was unreasonable.

16.	Mr. Tomake, counsel for the first three defendants, conceded that the information and affidavit deposed to by the second Defendant contain hearsay material and was defective. Mr Tomake, however, submitted that some of the relief sought should not be granted.

17. 	Ms. David, of counsel for the Fourth Defendant submitted that the orders sought by the Plaintiff should not be granted for the following reasons:

1)	the Plaintiff lacked standing to sue as the search was intended for a 	company, M2 International (PNG) Ltd;
2)	the Plaintiff’s Application was a second attempt;
3)	the Plaintiff did not have an arguable case.
	
CONSIDERATION OF THE ISSUES

A.	Competency issues

18.      In respect of the competency issues raised, I find the Plaintiff has standing to institute these proceedings. He was specifically named in the information. Even then, he was named as managing director of M2 International (PNG) Ltd, and in that capacity, he could sue on behalf of the company.  The Plaintiff operates and uses the container the subject matter of the search warrant and finally the search took place at the property of the Plaintiff.  In respect of the second competency issue of a repeat application, I note this is the only application for review. 

B.	Substantive Issues: Failing to consider relevant considerations.

19.  I agree with the submissions of counsel for Plaintiff that the First Respondent failed to consider relevant considerations when he issued the search warrant.  The Police officer who swore the affidavit, did not have personal knowledge of the factual matters he deposed.  The evidence was secondary, and it did not come from his own investigation of an offence.  It did not contain any specific particulars of the offence alleged to have been committed by the Applicant or was about to commit an offence.  The learned Magistrate could not have a reasonable belief that an offence was committed or was about to be committed.

a)	Errors of law

20.      The relevant provisions of law alleged to have been breached are section 6 of the Search Act, and sections 44 and 49 of the Constitution.  I set out the relevant sections and law below:
    
        “6.    ISSUE OF WARRANTS.
(1)	If a court, other than a Local Court, is satisfied by information on oath 
that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place–

(a)	anything with respect to which any offence has been or is believed on reasonable grounds to have been committed; or

(b)	anything as to which there are reasonable grounds for believing it is 
    	likely to afford evidence of the commission of any such offence; or

(c)	anything as to which there are reasonable grounds for believing is intended to be used to commit any such offence,

it may issue a warrant to search that building, craft, vehicle or place.

(2)	If a court is satisfied by information on oath by a commissioned officer of the Police Force that there are reasonable grounds for suspecting that there is in any building or buildings in a village or in any part of a village or village garden anything specified in Subsection (1)(a), (b) or (c), it may issue a warrant to search the building, buildings, village, part of the village or village garden.

(3)	Where a warrant has been issued under Subsection (2) the person, policeman or policemen to whom the warrant is directed shall, where it is practicable to do so, before executing the warrant, endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued.

(4)	Subsection (1) or (2) does not justify the use of greater force than is reasonable in the circumstances.”

            “44. Freedom from arbitrary search and entry.
 
No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision for a search or entry—

	(i) under an order made by a court; or

	(ii) under a warrant for a search issued by a court or judicial officer on 
	reasonable grounds, supported by oath or affirmation, particularly 	describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New 
	  Guinea or an officer of a body corporate established by law for a public 
	purpose to enter, where necessary, on the premises of a person in order to 	inspect those premises or anything in or on them in relation to any rate or 	tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of 	persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use 	or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to—
	
	(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or  industry; or
	(B) the affairs of a company in accordance with a law relating to 		     companies; or

(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New 	Guinea; or

(b) that complies with Section 38 (general qualifications on qualified rights).”

 “49. Right to privacy.
 
Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).
Special Rights of Citizens.”

21.      It is settled law that the grounds upon which a Search Warrant is issued must be reasonable and capable of proof.  See:  SCR No. 2 of 1980, Re s14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50, Esso Highlands Ltd v Bidar (2014) N6386, and Goi v Bank of South Pacific Limited (2020) N8271.

22.      In Esso Highlands Ltd vs. Bidar, Gavara-Nanu J said this at paragraphs 17 – 18 of his judgment:

	“17.  It is settled law that the grounds upon which the search warrant was issued has to be reasonable and that the grounds were capable of proof on the balance of probabilities:  See, SCR No. 2 of 1980; Re s.14(2) of the Summary Offences Act, 1977 1981] PNGLR 50.  This case involved passing of a valueless cheque.  The court considered “reasonable grounds” in the context of a defence raised, that the person who issued the cheque believed on “reasonable grounds” that the cheque would be paid in full on presentation.  The court said the reasonableness of the grounds upon which a belief held by the person that issued the cheque that the cheque would be paid in full on presentation required proof on the balance of probabilities.  For example, the person issuing the cheque had to adduce credible evidence which led him to believe that he had enough or more than enough money in his bank account before issuing the cheque.  Such evidence would have constituted reasonable grounds for him to believe that the cheque would be met on presentation.  The grounds upon which the belief was entertained by the person issuing the cheque had to be capable of being proved on the balance of probabilities.”

	“18.  In this case, there were no facts which could constitute reasonable grounds upon which the defendant could entertain a belief that an offence had been omitted or was about to be committed in the plaintiff’s office, which could warrant him to issue a search warrant.  The Information did not specify what offence was committed or was about to be committed, and the person who laid the Information, namely First Constable Dii Evara could not vouch to the facts stated in the Information, because he had no peculiar or personal knowledge of the facts.”

23.      In Goi v Bank of South Pacific Ltd, David J said at paragraph 72 of his judgment:

“A search warrant authorises the person to whom it is directed to search the place described in the search warrant to be searched and seize anything found in that place which relates to the offence or the matter of the information on which the warrant is founded or to any other offence: see Search Act, Chapter 341, Sections 8, 9, 10 and 11.”

24.      Section 6 of the Search Act requires that before a Search Warrant is issued, a Magistrate must be satisfied on sworn information that there are reasonable grounds for suspecting that there is in any building, craft vehicle or place anything with respect to which any offence has been or is 	believed on reasonable grounds to have been committed or is likely to afford evidence of the commission of such an offence.
  
25.      In the present case, the offence described in the information was for a stolen property. However, the information alleges a container was delivered to one M2 International (PNG) Ltd which was not returned. This appears to be a civil complaint rather than criminal offence per se. The information or evidence sought to be searched and seized was not capable of proving any offence. The items searched and seized was not for furthering a criminal investigation. The container retrieved was not for a court exhibit. Rather, it was retrieved and returned to the Fourth Defendant. 

26.     The action and decision of the First and Second Defendants appears to be an execution of an order without trial. The Plaintiff claims ownership of the container. The search and seizure of the container and damage to the personal property of the Plaintiff was an intrusion into the Plaintiff’s privacy.  It breaches section 49 of the Constitution which provide for the right to privacy.  

27.      The search and seizure of the container where he operated his office and kept his files was also a breach of section 44 of the Constitution which provide for freedom from arbitrary search and entry.  The First Defendant did not and could not have reasonable grounds to suspect that an offence has been or about to be committed.  The Plaintiff was arbitrarily subjected to the search and seizure. 

28.      In the end, I find the First Defendant acted ultra vires his powers when he issued the search Warrant. His decision was unreasonable in the circumstances. The decision of the First Defendant was unfair and is tantamount to breach of natural justice especially when it was issued ex parte.

29.     For the foregoing reasons, I uphold the application for judicial review.  I will grant most of the relief sought except for the restraining orders and damages.  There are insufficient pleadings for the orders sought. 

          ORDERS

30.    The Court orders: 

(1)	  By way of declaration that the decision of the First Defendant made on 	13th July 2020 to issue the search warrant to the police was made in 	 
breach of section 6 (1) of the Search Act.

(2)		By way of declaration that the decision of the first defendant made on 13th July 2020 to issue the search warrant to the police is null and void 	forthwith.

(3)		By way of declaration that the search warrant issued on 13th July 2020 is 
 null and void forthwith.

(4)		The decision of the First Defendant made on 13th July 2020 is brought into this Court and quashed.

(5)		 Consort Shipping Ltd, and the Second Defendant and his police officers 
 return the container of the Plaintiff to the property of the Plaintiff within   
 7 days, from the date of the order at their own expense in the same 	   
 manner as they have removed the said container from the property of the   
 Plaintiff. 

(6)		The Defendants shall pay the Plaintiff’s cost to be taxed if not agreed.

(7)		Time of entry of these Orders is abridged to take place forthwith 	upon the Court signing the Orders.
________________________________________________________________
Manase & Co. Lawyers:   Lawyer for the Plaintiff
Solicitor General:   Lawyer for the First & Second & Third Defendants
David & David Co. Lawyers:  Lawyer for the Fourth Defendant