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Popoitai v Genia [2023] PGNC 351; N10425 (28 July 2023)

N10425

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: 27th & 28th July


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Application for Stay – Order 16 Rule 8 (3) (a) & (b) NCR – Grant of Leave to Operate as Stay – Discretionary – Serious Issue to be Tried – Whether the Balance of convenience – Overall Interest of Justice – application for Stay 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.
McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646


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


RULING


28th July 2023


  1. MIVIRI, J: This is the ruling on the Notice of Motion of the plaintiff filed the 15th July 2023 pursuant to Order 16 Rule 3 (8) (a) and (b) of the National Court Rules, “the Rules,” seeking Stay.
  2. That order is in the following terms; “Where leave to apply for Judicial Review is granted, then-
  3. This is the basis for the plea that the applicant makes to this Court. It is the basis for the Courts jurisdiction to grant the application made as is the case here. And the arguments on competency raised hold no water in view.
  4. He relies on his affidavit sworn of the 14th July 2023, filed of the 15th 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 15th 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 22nd June 2022. He was appointed by the Treasurer Honourable Ian Ling- Stuckey under section 21 (1) (b) Amended Central Banking Act 2000 (CBA).
  5. 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 22nd 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 22nd 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 22nd 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 22nd 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 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.
  6. 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 attains 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 14th 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 22nd February 2023. Which did not stop because annexure “BP-6” notice of compulsory retirement dated the 30th June 2023 was again served him.
  7. In summary, these facts do not come out of the application of section 65 “Dismissal of the Director” of the AML&TFA 2015. Let alone section 22 of the CBA. Both Acts of parliament not policies on retirement and retrenchment. 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 12th July 2023 to the First Defendant to withdraw the compulsory retirement notice served on me by close of business Wednesday 12th July 2023. And the warning that legal action would be instituted has brought no response from her.
  8. Annexure “BP-1” letter dated 16th 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 23rd 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.
  9. 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 22nd 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.
  10. The Commission is quite concerned with the letter of 16th 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.
  11. 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
  12. 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)
  13. 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 21st 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 21st 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.
  14. 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 standi to pursue the matter. His evidence gauged in the light of this evidence independently in my view firms out that there is really no basis to derail him from the seat that he held as Director of FASU. He is 65 years old at 11th January 2023. And has been appointed Director of FASU for a period of 3 years and 6 months ending 19th January 2024. And that is an appointment following from the establishment of FASU by section 61 of AML&TFA 2015. As such he is an officer of the Bank of Papua New Guinea by section 62 of that Act. Which is by written Instrument under hand of the Governor of the Bank of Papua New Guinea who consults the Commissioner of Police and the Departmental head responsible for National Justice Administration. That is not the evidence here leading to his ask by the First Defendant for his compulsory retirement on the basis of being 65 years old.
  15. In so appointing he has up to the 19th January 2024 to be in that Chair of Director FASU. And can be removed in accordance with reverse by this process by this Act. And the Compulsory retirement by age of 65 is not in the AML&TFA 2015 because his dismissal if he must be is, in accordance with section 65 of that Act. There is no evidence of any criminal offence known to the criminal laws of Papua New Guinea for which he has been found guilty by a competent Court of Jurisdiction that has been produced here warranting his dismissal as Director of FASU. And there is no evidence that he has breached the terms of his appointment to that position before me deposed to by the Defendants. There is no evidence deposed to by the defendants that he has acted in a manner grossly prejudicial to the performance of that position and his duties relating there. He has not been discharged as insolvent or bankrupt, nor has he been found to be unsound within the meaning of any law relating to the protection of the person, property. Particularly the Criminal Code Act. This is really a case where prima facie internal processes and procedure administratively have not been followed and there is no heed or no avail the first defendant: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). It really is a case where Judicial review has been rolled up in favour of the applicant by stares decisis. And where he is pleading that the Status quo remain, there is stay, it has very strong basis to grant given.
  16. There is no vacancy because the applicant here has resigned pursuant to section 66 of that Act. And the position is therefore vacant and so another senior officer within the bank has been appointed by the same process set out above to that seat. There is really no evidence to this effect in the realm of section 66 of that Act deposed to by the defendants. There is no evidence from the Commissioner of Police in this case the current commissioner David Manning on the file of this proceeding warranting that Director Benny Popoitai must retire resign or that he is no longer a suitable person to hold that chair. Which is supported by the current Secretary for Justice by an affidavit or material to that effect deposed here by the Defendants, let alone the first defendant.
  17. 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 is also basis in the event of appropriate demonstration by the facts evidence and law to grant a stay. It 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 Judicial review is very 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 in the case of a stay application as is the case here. Substantive remedies are not given because that is ultimately in effect what a stay does. So it must in my view be a very clear case warranted by the law applied to the facts circumstances to justify upholding the plea of the applicant as is the case here. It must be apparent overt and identifiable that, that is the decision in law warranted not otherwise.
  18. 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 secured leave not a light matter which draws that he has very strong arguable case to advance to the substantive hearing. It means the Stay is not up in the air but warranted by its facts and circumstances. Some material aspects relevant here I have drawn out above. The independent corroboration by the Ombudsman Commission in its evidence overwhelmed by the Constitutional dictate that it plays set out above verifies in all material particulars the assertions of the applicant. That office by its mandate under the Constitution is not interested in the tussle over that position of Governor or Deputy Governor or Acting Governor between either the First Defendant or the applicant. It is not the dictate of the Ombudsman Commission to meddle into administrative affairs in running a Government Organization or department. But where the role of the Constitution it is discharged with comes into play as is the case here, it is no light matter to go to the extreme of the directives it has issued evidenced here. Their concern is clearly spelt out in their role by section 27 (4) Direction under the Constitution and the Investigations into allegations of misconduct in office by the Acting Governor the First Defendant. And that position is maintained by that office by the annexures set out above no fault of the applicant. They are in their role by the Constitution of our Country. And have not been accorded observance by the first Defendant let alone the other defendants. It is clearly against the dictate of the law where the highest law of the land sections 9, 10, 11, is the Constitution not heeded by the defendants.
  19. There is no reason depicted by evidence before me as to why the defendants have acted in this manner, except reliance on a Bank retirement and retrenchment policy which is in no way near in any way or form to the Constitution of this Country, the highest law of the land discharged by one of the Constitutional Offices, the Ombudsman Commission in his duties asserting very serious allegations against the First Defendant now investigated by that Commission. If there is no heed to the applicant to desist, it cannot be understood, nor can it be balanced out as to why not the heed here. In my view it is independent corroboration of an ulterior motive because there is no basis in law to the scheme to remove by compulsory retirement because of age, 65 years upon the applicant.
  20. That is not the reading of sections 65 of the AML&TFA, or for that matter section 22 (1) (c) of the Central Banking Act 2000. The applicant is only 65 years old as of 11th January 2023. He is not 70 years old by section 22 (1) (c), so why has he not been removed by both Acts of Parliament, but by a mere policy, which is defiant in the face of the Constitution of this Country, making serious allegations of impropriety to leadership in that office of Acting Governor, the First Defendant. The hierarchy of the laws are clear by section 9, 10, 11, of the Constitution. Therefore, where would in law a compulsory retirement policy sits in that light. The law will not be riddled and stamped out underfoot in the dust, especially the Constitution of Papua New Guinea that has seen out this Country for over 47 and half years now. And no one will in the watch of this Court defy that Constitution especially in the way that the First Defendant has had to here pertaining to the applicant. And this Court will protect the Constitution and read what it sets out to do in its application.
  21. She is an acting Governor of that Bank, and the applicant is at the forefront, able, learned, experienced, and fortified in all respects to sit in that chair. I am mindful of the affidavit of 26th July 2023 she has filed in the contention against. But in my view, she accepts the fact that she has acted by Policy not by law in what she has set out to do what she did against the applicant. She falls short in the application of the law in the evidence she has attested to. And in my view do not overturn the evidence that the applicant has laid out. I prefer his evidence sworn of the 26th July 2023 filed the same. Also of 14th July 2023 filed 15th July 2023. By which he has sat in that chair over the number of years that he has been in that Bank as a career officer without blemish to his account in that service. She in my view will do all to ensure that there is no competition to that position. I make this determination in the face of all I have set out above. Experienced Papua New Guinean men, women, of high professional, moral and standing, learned in their own right to lead an organization, or Department, of Statutory Offices, or Institutions must by that fact be allowed to lead. In fighting that is rampant before the Courts must stop and the goodness of the Country must be placed above all else. Here is evidence of the applicant as director of FASU required to ensure the preparations of the Papua New Guinea’s Mutual Evaluation Exercise commencing in 2023 to progress without disruption. And in the face of that to be told to retire compulsory by a policy not law, statute, or the Constitution.
  22. These observations tie in with McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 (30 June 2000), because there are very serious pertinent and fundamental questions, because of the leave granted here. And in my view the balance of convenience stemming from the discussion set out above, are in favour of the grant of the application. The careful analysis of all set out above in my view leave no other apparent here except to go the way the applicant has applied. That is the only identifiable basis given all set out above.
  23. There is no prejudice to the defendants except the applicant who has not been turned down by Policy not law. Court time has been unnecessarily taken up by a matter that ought not to have come this far. The role of the Ombudsman Commission highlighted independently. The latter is overriding especially the dictate of the Constitution defied by the First Defendant repeatedly. Here the heart of the matter does not lean to the submissions made by the Defendants in any way or form. Lawyers are officers of the Court and must assist the Court with the law and its application. There is no room to adventure into academics where the life or a citizen the running of the Country is involved by all. There will come a time where lawyers will also personally be liable in court.
  24. In my view the aggregate is that the overall interest of Justice lie in the grant of the application for Stay flowing from the leave granted. I accordingly grant in full the order for stay as applied.
  25. The formal orders of the court are:

Shall operate as Stay of these decisions until the determination of the application or until the Court otherwise orders;


(3) Pending hearing and determination of the proceedings or until further orders of this Court, the 1st to the 4th defendants by their servants, agents, associates, and whosoever associated with her be restraint from intimidating and or harassing the Plaintiff in whatever manner or form including employees and officers of FASU.

(4) The parties are granted liberty to apply to vary or set aside these orders by giving seven (7) days’ notice forthwith.

(5) The matter will revert for directions hearing on Monday 31st July 2023 at 9.30am.

(6) Costs will follow the event.

Orders Accordingly.
__________________________________________________________________
Kopunye Lawyers: Lawyers for the Plaintiff/Applicant
Office of the Solicitor General: Lawyers for Fifth Defendants
StraServ Legal: Lawyers for the First to Fourth Defendants.
In house lawyers: Lawyers for Defendants

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