Popoitai v Genia [2023] PGNC 249; N10418 (21 July 2023)

N10418

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 77 OF 2023

BENNY POPOITAI
Plaintiff

V
ELIZABETH GENIA IN HER CAPACITY AS THE ACTING GOVERNOR-BANK OF PAPUA NEW GUINA
First Defendant

AND
TAU VINI IN HIS CAPACITY AS BOARD SECRETARY-BANK OF PAPUA NEW GUINEA
Second Defendant

AND
DAVID TOUA IN HIS CAPACITY AS THE CHAIRMAN OF THE BOARD OF DIRECTORS OF BANK OF PAPUA NEW GUINEA
Third Defendant

AND
ULATO AVEI, RICHARD KUNA, JAMES GORE IN THEIR RESPECTIVE CAPACITIES AS MEMBERS OF THE BOARD OF DIRECTORS OF BANK OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2023: 19^th & 21^st July

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Leave to apply for Judicial review – Acting Governor Bank of PNG – Permanent Appointment Recommendation for – Standing – delay – Arguable case – Internal remedies – application for leave Granted – cost follow event.

Cases Cited:

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122

Counsel:

N. K. Kopunye, for Plaintiff
K. Kipongi, for Defendants

RULING

21^st July, 2023

1. MIVIRI, J: This is the ruling on the originating summons of the plaintiff filed the 15^th July 2023 pursuant to Order 16 Rule 3 (1) of the National Court Rules, “the Rules.” He seeks leave to be granted to judicially review the decisions of the defendants made on the 15^th June 2023 firstly, in compulsorily retiring the plaintiff. And secondly the decision of the first Defendant conveyed in a letter dated the 30^th June 2023 to the Plaintiff. He also seeks any other orders as discretion by the Court.
   
2. He relies on his affidavit sworn of the 14^th July 2023, filed of the 15^th July 2023 as basis for the pray. And which facts are also set out in the order 16 Rule 3 (2) Statement filed also of the 15^th July 2023. He currently serves by contract as Director of FASU (Financial Analysis and Supervision Unit.) which is established under Part VI Division 1 Subdivision 1 of the Anti-Money Laundering & Terrorist Financing Act 2015 (AML&TFA 2015). Section 63 of that Act sets him up as Director. And which appointment is by instrument by the Governor of the Bank of Papua New Guinea for a period of five (5) years expiring in 2024. In December 2021 whilst serving in that position he was appointed Acting Governor of the Bank of Papua New Guinea for an initial period of six months up to 22^nd June 2022. He was appointed by the Treasurer Honourable Ian Ling- Stuckey under section 21 (1) (b) and 213 of the Amended Central Banking Act 2000 (CBA).
   
3. Which appointment was recommended by the Board of the Bank of Papua New Guinea (Board) for extension for another term which was for three (3) months to 22^nd September 2022. And in that month the Board met and passed a resolution recommending the plaintiff’s permanent appointment as Governor of the Bank of Papua New Guinea. Which was ignored by the Treasurer but extended the acting appointment for another three (3) months expiring on the 22^nd January 2023. And again, in January 2023 the Board met and passed a resolution recommending the plaintiff’s permanent appointment as Governor of the Bank of PNG. The Treasurer ignored the Board’s recommendation and appointed Ms. Elizabeth Genia the First Defendant as the Acting Governor for 3 months until 22^nd April 2023. She was not recommended for reappointment but the Treasurer without the recommendation of the Board, unilaterally extended her appointment for a further three (3) months expiring on the 22^nd July 2023. And in February 2023 the plaintiff was served a notice by the First Defendant in her capacity as the Acting Governor advising him that she was using her powers under CBA and compulsorily retiring him due to his age officially crossing 65 years. To which the plaintiff replied copied to the Chief Ombudsman, Mr Richard Pagen, advising that her actions were vindictive in nature and abuse of power and inconsistent with section 22 (1) (c) of the CBA 2000. In it the retirement age was 70 years for anyone at the position of Deputy Governor or Acting Governor or Governor.
   
4. The plaintiff has been Deputy Governor for 15 years before assuming his contractual position as Director of FASU under which it depended on the expiration of his contract with FASU or he attaining 70 years old whichever was the earlier so that he retired pursuant. The Chief Ombudsman intervened in the matter in February 2023 serving a notice, annexure “BP-2” to the first Defendant to withdraw her letter of compulsory retirement on me and to reinstate me immediately as Director of FASU. In April 2023 again a notice of compulsory retirement was served the plaintiff citing a public announcement made by a certain Minister appointing me as a Director of the PNG Stock Exchange. And which was in breach of the Ombudsman Commission’s directives of February 2023. So, Plaintiff met in person with the first Defendant and responded to her notice citing her abuse of power and vindictive actions. In May 2023 annexure “BP-3” letter was served on me whilst I was overseas on FASU business matters instructing me to immediately vacate the residential premises I was occupying as it was BPNG property, and I was not entitled to the residence.” I replied by annexure “BP-04”. And on the 14^th June 2023 the Ombudsman Commission issued a warning to the First Defendant regarding her continuous harassment of the plaintiff which was defying their directive notice of the 22^nd February 2023. Which did not stop because annexure “BP-6 notice of compulsory retirement dated the 30^th June 2023 was again served him.
   
5. In summary, these facts do not come out of the application of section 65 “Dismissal of the Director” of the AML&TFA 2015. And there is no Board resolution to account that the Board had passed such a resolution. No response has been received by the plaintiff on the letter, annexure “BP-07” replying to the notice of compulsory retirement. And there is no letter replying to the letter dated 12^th July 2023 to the First Defendant to withdraw the compulsory retirement notice served on me by close of business Wednesday 12^th July 2023. And the warning that legal action would be instituted has brought no response from her.
   
6. Annexure “BP-1” letter dated 16^th February 2023 under hand of the First Defendant subjected Compulsory Retirement Payout details prima facie that there are procedures missing why the plaintiff has been addressed in such manner. “This is to advise that you have been compulsorily retired by the Bank in accordance with the retirement Policy of the Bank effective as of Thursday 23^rd February 2023. Your Retirement Benefits will be processed in accordance with the Bank’s Redundancy & Retrenchment Policy 2007 (Clause 20) based on your current Salary Grading 14, Step7. The relevant benefits are as follows.
   
   • (i) Ordinary Salary up to 23^rd February 2023, date of termination service.
   • (ii) Pro-rata recreational Leave (MILOF) as at 23^rd February 2023 date of termination of service.
   • (iii) Pro-rata long service Leave (MILOF) as at 23^rd February 2023, date of termination of service.
   • (iv) A retirement benefit payment determined by Multiplying the completed years of service in the Bank (up to maximum of 20 years) by the appropriate number of days as per table in Clause 20 of Redundancy and Retirement Policy 2007.
   • (v) Repatriation Airfares including last lag to your home Province of East Sepik Province.
   • (vi) Repatriation Cost for transportation of any personal effects to your home Province.
   • (vii) Gifts to the value of K 10, 000.00 which will be beneficial for use after exiting formal employment.
   • (viii) In line with the Retirement Policy of the Bank and the Board to thank you for your invaluable contributions to the Bank of Papua New Guinea for your forty-two (42) years of service. Signed Elizabeth Genia AAICD (Ms)”
     
7. Annexure “BP-2” Direction under section 27 (4) of the Constitution-Investigations into allegations of misconduct in Office by Acting Governor of the Central Bank, letter dated 22^nd February 2023 addressed to the Mrs Elizabeth Genia Acting Governor office of the Governor Bank of Papua New Guinea on the subject including Mr. David Toua Chairman Office of the Chairman Board of the Central Bank of Papua New Guinea. The letter is serious and draws out an independent assertion of a serious allegation against the office held by the incumbent First Defendant. And this is particularly so at the outset where the Ombudsman Commission says, “The Ombudsman Commission received information and is conducting investigations under the leadership code (Constitution and the Organic Law on the Duties and Responsibilities of Leadership) relating to serious allegations against the conduct of the Acting Governor of Bank of Papua New Guinea, a person to whom the Leadership Code Applies.
   
8. The Commission is quite concerned with the letter of 16^th February 2023 to Mr. Benny Popoitai the Director of Financial Analysis and Supervision Unit (FASU) on “Compulsory Retirement” Firstly, without regard to the terms of his Contract and secondly, without concerns on the current preparations of the Papua New Guinea’s Mutual Evaluation Exercise commencing in 2023. The Ombudsman Commission has determined that it is necessary to issue the Direction pursuant to section 27 (4) of the Constitution in this particular case, for the purpose of ensuring the attainment of the objects of section 27 of the Constitution and in particular protecting your integrity, while it investigates the serious allegations.
   
9. The Commission hereby directs pursuant to section 27 (4) of the Constitution that you: (i) take all steps necessary to ensure that you, or the office of the Governor of the Central Bank, does not terminate, suspend or otherwise remove Benny Popoitai, who has or is required by the Ombudsman Commission to furnish documents or other information or given evidence to it in connection with the investigation that is being conducted by the Ombudsman Commission concerning certain conduct of the Acting Governor; and
   
10. Retain the services of Benny Popoitai as outlined in the contract made between Benny Popoitai and the Bank of Papua New Guinea on the same terms and conditions as those applicable; notwithstanding the expiration of any contract or agreement covering his employment under the employment agreement between Benny Popoitai and the Bank of Papua New Guinea (The State)
    
11. Take all steps necessary to ensure that you, or the office of the Governor of the Central Bank, its agents and servants and the Chairman of the Board of the Central Bank, its agents and servants do not terminate, suspend or otherwise remove Benny Popoitai, who is Director of FASU on a three and half years Contract commencing on 21^st July 2020 who is required to ensure that the preparations of the Papua New Guinea’s Mutual Evaluation Exercise commencing in 2023 to progress without any disruption; and respect the terms of the Contract between Benny Popoitai and the Bank of Papua New Guinea which commenced on 21^st July 2020 for a period of three years and six months;” And warning is given of the serious consequences involved should the dictate of the Ombudsman Commission is not heeded. It is signed by both the chief Ombudsman and Ombudsman Kevin Kepore.
    
12. In my view given this independent confirmation from another Constitutional office, the Ombudsman Commission demonstrates that this is an appropriate case where the plaintiff has standing or locus standie to pursue the matter. He is affected by the decision of the first Defendant. And is clearly with locus standie to bring forth the assertions. He satisfies that requirement prima facie.
    
13. The next requirement is whether he has an arguable case. Primae facie from what is set out above it is clear that he has an arguable case. And he demonstrates this requirement satisfactorily.
    
14. And the evidence shows the internal processes and procedure administratively followed with no avail and heed by the first defendant: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). This is satisfied in his favour.
    
15. That now leaves the remaining ground of whether or not there was delay in the bringing of this action. And the reference here is to Order 16 Rule 4 of the Rules. This is an action instituted within time as it is a minimum of two months from the last Act of harassment by the first defendant of 26^th May 2023 when the first defendant instructed the plaintiff to leave the subject Bank house that he occupied.
    
16. Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [ 2005] PGSC 27; SC797 (28 October 2005. That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Which also boldly sets in place the requirement to satisfy all grounds set out above before the grant of leave to judicially review an administrative decision as here. Because it is a restrictive procedure and guard against busy bodies and the like from mingling into its tracks leave application has jealously observed over the years since, Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. It would be no different here and there has not been advanced any matters by the materials relied to deviate or waive what has been settled.
    
17. 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. He has satisfied the requirements set out above for leave for Judicial Review. I accordingly grant the originating summons in the terms pleaded.
    
18. The formal orders of the court are:
    
    • (1) Leave is granted forthwith.
    • (2) The plaintiff will file the substantive Notice of Motion within 14 days as of todays date forthwith.
    • (3) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Kopunye Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for Defendants