Yamuna v Mori [2021] PGNC 93; N8765 (12 February 2021)

N8765

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 78 OF 2020 [IECMS]

BETWEEN:
RUEL YAMUNA
Plaintiff

AND:
HON. WERA MORI, In his capacity as Minister for Environment & Conservation and Climate Change
First Defendant

AND:
JACOB EKINYE, In his capacity as General Management, Adaptation and Projects Division of Climate Change and Development Authority
Second Defendant

AND:
CLIMATE CHANGE AND DEVELOPMENT AUTHORITY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 10^th February

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion –application for Stay – Serious Issues to be Tried – Whether damages would be appropriate – Undertaking as to Damages – Balance of convenience – Interest of Justice – Material relied – Balance discharged – Stay granted – cost follow the event

Cases Cited:

Gary McHardy v. Prosec Security [2000] PNGLR 279
Wartoto v State [2013] PGNC 108; N5320
Independent State of Papua New Guinea v Kalaut [2021] PGSC 2; SC2067

Counsel:

S. Wanis, for Plaintiff
S. Liria, for First Defendant
I. Mugugia, for the State
G. Tine, for Second & Third Defendants

RULING

12^th February, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s notice of motion 1^st December 2020 under order 16 Rule 13 (13) (1) and Order 12 Rule (1) of the National Court Rules, and section 155 (4) of the Constitution for stay of the decision of the First Defendant/Respondent by way of letter dated the 23^rd November 2020 that:-
   
   • (a) Purportedly suspended the Plaintiff/Applicant as the Managing director of the Third Defendant/Respondent; and
     
   • (b) Purportedly appointed the Second Defendant/Respondent as the Acting Managing Director of the third Defendant/Respondent,
     

be stayed pending the determination of this proceeding or further orders of the Court.

2. The relevant law often sighted is in Gary McHardy v. Prosec Security [2000] PNGLR 279, which is principally an exercise of judicial discretion depended on a number of factors. These include as here, whether leave is required. Obviously here that has been granted. And whether there is delay in the making of the application. Here it would be not so in view of the evidence set out, and the ruling of this court in the leave application. It would also need to be assessed as to whether or not there is possible hardship, inconvenience, or prejudice to either party. And the nature of the Judgement, including the financial ability of the plaintiff, here settled by the undertaking to damages that has been filed for the leave application. And primary assessment as to whether or not there is an arguable case. Here it may also include error on the face of the record against the judgement appealed, or reviewed as here. Which may also include procedure in law as well and the overall interest of justice posed in all the circumstances. And whether or not the balance of convenience favours the grant or not to.
   
3. The primary evidence relevant is the letter annexure “RY6” to the affidavit of the plaintiff sworn of the 30^th November 2020 and filed the 1^st December 2020. It is from the office of the Minister Ministry of Enviroment and Conservation and Climate Change. It is addressed to the Plaintiff in his official capacity as the Managing Director of Climate Change and Development Authority. The subject is allegations of misconduct and misappropriation in the Climate Change and Development Authority.
   
4. At the forefront, the letter is in response to the response letter of the 07^th September 2020 to the Minister by the plaintiff. Who is not satisfied with the response because there are more questions posed as opposed to answers and settlement of the query raised in respect of funding of K1million, expended without the approval of the National Executive Council (NEC). That no acquittal has been provided but that reply was made submitting all to the Ombudsman Commission.
   
5. Secondly the letter raises Conspiracy to defraud the State of K1.5million arising from a Consultancy contract purportedly worth K1.5million done with clearance that it was within law and legally so cleared by the Department of Justice and Attorney General. When that was not the case because the letter of the 7^th September 2015 to Late Kino Wenge categorically states the contrary, “For you to charge Legal fees as you have done on your own is illegal” And that any proceeds owing to a deceased is paid to the Public Curator but you approved and paid to the wife of the deceased Mrs Koran Wenge.
   
6. The letter also raises Misappropriation detailing acquittal of travel allowances and cash advances totalling more than K 220,000. In addition, the administration of the office has been lacking efficiency. Hence the decision taken under section 47 of the Climate Change Management Act 2015 as Minister responsible without a Board in existence to suspend you effective 27^th November 2020 for an indefinite period. And in the interim appoint Mr. Jacob Ekinye General manager for Adaptation and Projects Division to be Acting Managing Director pursuant to section 48 “until such time you are cleared through an independent investigation.”
   
7. The Minister has suspended the plaintiff effective of the 27^th November 2020 for an indefinite period. It means substantially the plaintiff still holds the chair as the Managing Director of the third defendant. That is clear because the appointment of Jacob Ekinye is until such time plaintiff is cleared through an independent investigation relating to the allegations raised against him. And this fact is clear because the plaintiff is the Managing Director of the third defendant since the 03^rd May 2017 for four years ending on the 17^th May 2021. Until that date will he cease to hold that office. He is suspended and the matters which are the subject of the letter set out above must be properly settled through the process.
   
8. There are very serious and arguable issues pertinent by the Climate Change (Management) Act 2015 “the Act”. Section 44 of which establishes the office of the Managing Director who is the Chief Executive officer of the Authority. And he “shall be appointed by or suspended or removed from office in accordance with this Division and the Act,” Section 44 (4) (b) of the Act. The process of appointment is set out under section 45 which includes advertisement of the position, assessment of each of the applicants CV and the like, and is merit based appointment which is recommended by Appointment Committee set up by section 17 of the Act, to the National Executive Council, who will out of the list of applicants on merit advise the Head of State to make appointment of the selected candidate to the position of the managing director. The functions discharged materially underpin the running of the Authority by section 46 of the Act.
   
9. This is fundamental issue underpinning, because it would be different if suspension were by that procedure prima facie. As it is, there is very strong arguable case posed in respect of the suspension that was affected. The allegations set out above are very serious by the letter under hand of the Minister. But then it is all the more to ensure proper procedure by the law to ensure what is alleged materializes at the end. In so making this determination the court is fully conversed with Wartoto v State [2013] PGNC 108; N5320 (15 August 2013). No man is above the law all are susceptible to the realm of the law. And it should not be the case that a bar is erected against the path of law and its rule. Stay is not for convenience but must reflect the law that is laid out covered by the facts and the evidence posed. And this is clear from Independent State of Papua New Guinea v Kalaut [2021] PGSC 2; SC2067 (28 January 2021). The incumbent holding did not have the tertiary qualification. But prejudice outweighed because of the Constitutional role that was discharged by the Office of the Commissioner of Police it was necessary that a status Quo was maintained pending the appeal.
   
10. Here affidavit sworn of the 08^th February 2021 filed same day by Ruel Yamuna the plaintiff, shows clearly by annexure“A” Order of the Waigani District Court referenced 1475/2020 CB 2149/2020, Between PC Abel Andrew v Ruel Yamuna, that the criminal charges laid have been struck out, “(1) Charge is ambiguous for not stating clearly the elements of the offence. (2) The information is struck out for being defective due to ambiguity. (3) The defendant is discharged from the information being one count of Abuse of office under section 92 (1) of the Criminal Code Act. (4) Bail sum of One Thousand Kina (K1000) is refunded forthwith”. It is entered and dated the 13^th January 2021 signed by Tracy Ganaii Presiding Magistrate.
    
11. There is no process of criminal law that is against the plaintiff as in Wartoto (supra) so that there is a cloud over him. There are now allegations made that must follow due process to end warranted where-ever the law speaks. That is not the same that the plaintiff remains out of the office. Because he is still paid by the State and ought to earn his keep so to speak. In any case the contracts life is almost at the end, it would lapse its natural life on 17^th May 2021 which is two months from now, and therefore it would be proper to allow it to continue by law. Unless and until there are process in law complied, plaintiff has discharged this to the balance required. And there is nothing apparent or identifiable that will sway against the plea to grant the stay sought. Accordingly, the motion is granted in favour of the plaintiff.
    
12. The formal orders of the Court are:
    
    • (i) An Interim stay is granted pending the hearing and determination of this proceeding OS (JR) 78 of 2020.
      
    • (ii) The matter will be called at the directions hearing of the Court on Monday 1^st March 2021 at 9.30am.
      
    • (iii) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Solomon Wanis Lawyers : Lawyer for the Plaintiff

Liria Lawyers & Forensic Services: Lawyer for First Defendant

G. Tine Lawyers : Lawyer for the Second & Third Defendants

Office of the Solicitor General : Lawyer for the Fourth Defendant