Review Pursuant to Constitution Section 155(2)(b); Application by Anderson Agiru [2003] PGSC 25; SC704 (11 April 2003)

SC704

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCR 8 of 2003

REVIEW PURSUANT TO
SECTION 155(2)(b) CONSTITUTION

APPLICATION BY ANDERSON AGIRU

AND:

APPLICATION BY THE PUBLIC PROSECUTOR
TO SET ASIDE THE INTERIM ORDERS

Waigani: Kapi DCJ., Salika J., Sakora J
1st & 11th April 2003.

JUDICIAL REVIEW – S 155(2)(b) of Constitution – Inherent Power of Supreme Court to review decision of a National Court – Second application for Judicial review under s 155(2)(b) of the Constitution – Same parties – Same facts – Same relief sought – Principles of res judicata and estoppel apply – Abuse of process.

Application to set aside interim orders – S 155(4) of Constitution – Power to review decision of a single judge of Supreme Court – Interim Orders by a single judge of Supreme Court – Jurisdiction of a single judge of the Supreme Court to issue interim orders – Interim orders set aside.

Cases cited:
Avia Aihi v. The State [1981] PNGLR 81
Avia Aihi v. The State [1982] PNGLR 44
Application by Jeffery Balakau (Unreported judgment of Supreme Court dated 25 October 1996, SC529).
Peter Peipul v. Hon Justice Sheehan, Mr Orim and Iova Geita (Leadership Tribuhal), the Ombudsman Commission and the State (SCM 2 of 2002) (Unreported judgment dated 1 May 2002).
SCR 13 of 2002 (Unreported Judgment of the Supreme Court dated 24th May 2002, SC686).
Titi Christian v. Rabbie Namaliu and the State (Unreported Supreme Court Judgment dated 18 July 1996).
Isidore Kaseng [1995] PNGLR 481
Viviso Seravo & Electoral Commission v. John Giheno (Unreported judgment of the Supreme Court dated 15th January 1998, SC539).
Viviso Seravo & Electoral Commission v. John Giheno (Unreported judgment of the Supreme court dated 21 January 1998, SC555).
Wauri Wasia Ranyeta v. Masket Iangalio & Electoral Commission (Unreported judgment of the Supreme Court dated 17 July 1998, SC562).
David Lambu v. Peter Ipatas & Electoral Commission (Unreported Judgment of the Supreme Court dated 30 April 1999, SC601).

Counsel:
D. Lora & A. Amet (Jr.) for the Applicant
D. Cannings for the Public Prosecutor

11th April 2003.

BY THE COURT: Two proceedings have been brought before us for determination in a joint hearing as a consequence of a direction given by the Chief Justice on 28th March 2003.

The first proceeding is an application for substantive judicial review (SCR 8 of 2003) filed on 19th February 2003 under s 155 (2) (b) of the Constitution. It seeks a substantive judicial review of a decision of the National Court (Sheehan J) dated 14th March 2002.

The second proceeding is an application to set aside an interim order made by a single judge of the Supreme Court (Los J.) dated 26th February 2003 pending the determination of the substantive judicial review (SCR 8 of 2003).

The two proceedings are related and in order to fully appreciate the issues, it is necessary to set out the history of the proceedings. Anderson Agiru (Applicant), a member of the last National Parliament was charged with fifteen (15) allegations of misconduct in office under the Leadership Code. The Leadership Tribunal (Tribunal) consisting of Sawong J, Magistrates Patrick Baiwan and Peter Toliken found the Applicant guilty of twelve (12) charges and found him not guilty on three (3) charges on 16th January 2002.

Two days later, the Tribunal recommended dismissal of the Applicant from office of Member of Parliament plus a fine of K7,000. On 20th January 2002, the Acting Governor-General acting in accordance with the recommendations of the Tribunal dismissed the Applicant from office and imposed a fine of K7,000.

On 22nd January 2002, the Applicant filed an originating summons (OS 27 of 2002) in the National Court seeking leave to review the decision of the National Court under O 16 of the National Court Rules. The National Court heard the application and on 14th March 2002, refused to grant leave and dismissed the application.

On 19th March 2002, the Applicant filed an application for judicial review (SCR 13 of 2002) in the Supreme Court seeking to review the decision of the National Court. He sought two remedies (i) judicial review under s 155 (2) (b) and (ii) orders under s 155 (4) of the Constitution.

On 29th April 2002 when the application initially came up for hearing, the Supreme Court sought clarification of the nature of the application. Upon this enquiry, counsel for the Applicant amended the application and confined the application to judicial review under s 155 (2) (b) and abandoned the orders sought under s 155 (4) of the Constitution.

The Supreme Court dismissed the review on 24th May 2002 with a majority of 4-1 on the basis that it was an abuse of the process of court.

On 29th May 2002, the Applicant filed a different application (MP 509 of 2002) under s 57 of the Constitution. In this proceeding the Applicant sought to enforce his right to stand for elective office under s 50 of the Constitution by way of seeking to review the decision of the National Court (Sheehan J), and sought orders to effectively allow him to contest the National Elections in June 2002. This application came before Los J. for hearing. He however disqualified himself from hearing the application upon objection by counsel in view of the fact that he had expressed an opinion in favour of the Applicant in a dissenting opinion in SCR 13 of 2002. No reasons for decision were published.

Section 57 application was heard by Gavara-Nanu J and on 12th June 2002 he dismissed the application on the basis that it was an abuse of the process of court.

This decision was appealed to the Supreme Court in SCA 49 of 2002 on 13th June 2002. The Supreme Court consisting of Hinchliffe, Jalina and Batari JJ. dismissed the appeal and found that the appeal was an abuse of the process of court.

The practical result of all these unsuccessful proceedings was that the Applicant remained dismissed from office.

When the National Elections were conducted in June/July 2002, the Applicant did not nominate to stand for election because he was disqualified from doing so by operation of s 31 of the Constitution.

However, the elections in several electorates including the Southern Highlands Provincial Electorate were declared a failure under s 97 of the Organic Law on National and Local-Level Government Elections (Organic Law) and the writ for supplementary elections was issued on 20th February 2003 for nominations to take place on 27th February 2003 with polling commencing on 26th April and ending on 9th May 2003.

On 19th February 2003, the Applicant filed SCR 8 of 2003 a substantive judicial review application under s 155 (2) (b) to review the same decision of the National Court (Sheehan J.).

On the same date, the Applicant filed an application in the Supreme Court seeking orders to permit him to nominate for the Southern Highlands Provincial Electorate. This application came before Los J as a single judge of the Supreme Court, and he granted the relief sought on 26th February 2003 and permitted the Applicant to nominate for the Southern Highlands Provincial Electorate. The Applicant nominated on 27th February 2003 as a consequence of this order.

The Public Prosecutor filed an application on 17th March 2003 to set aside Los J.’s order of 26th February 2003.

The Chief Justice on 28th March 2003 directed the parties and constituted this bench to determine the two proceedings in the same hearing. Significantly, the Public Prosecutor was not a party to the substantive application (SCR 8 of 2003) and the application for interim order before Los J. The Chief Justice in the same direction added the Public Prosecutor as the appropriate party to these proceedings in accordance with the Ruling of the Supreme Court in Peter Peipul v Hon. Justice Sheehan, Mr Orim Karapo & Iova Geita (Leadership Tribunal), The Ombudsman Commission & The State (SCM 2 of 2002) (Unreported Judgment of the Supreme Court dated 1st May 2002).

SCR 8 of 2003.

We consider that it is important to deal with the substantive proceeding (SCR 8 of 2003) first.

It is necessary to set out in full the grounds and orders sought in the substantive application:

"4. GROUNDS:

(a) His Honour erred in law in finding that there was no arguable case made out that allegations 8, 10, 11 and 13 against the Applicant put to the Sawong Tribunal ("Tribunal") contained charges that the Applicant had committed criminal offences.

(b) His Honour erred in law in finding that there was no Arguable case made out that the Tribunal had no jurisdiction to conclude that the behaviour of a leader proved before it amounted to a breach of the criminal law.

(c) His Honour erred in law in finding that there was no arguable case made out that the Tribunal might not come to such a conclusion employing a standard of proof less than proof beyond reasonable doubt.

(d) His Honour erred in law in finding that the provisions of Section 37, Constitution afforded no protection to the Applicant in respect of allegations made against him to the Tribunal of breaches of the criminal law and in respect of the Tribunal in so doing employing a standard of proof less than proof beyond a reasonable doubt.

(e) His Honour erred in law in finding that there was no arguable case made out that the Tribunal had imposed penalties upon the Applicant for breaches of the criminal law found by the Tribunal.

(f) His Honour erred in law in finding that the Plaintiff’s submission that the Public Prosecutor only had authority to prosecute in court was not a contention forming part of his application for leave, as such contention went to the Tribunal ‘s jurisdiction to deal with allegations of offences under the Firearms Act.

(g) His Honour erred in law in finding that the test of "arguable case" will be higher than otherwise because the State appears upon the application for grant of leave for judicial review.

(h) His Honour erred in law in failing to examine whether or not the penalty of dismissal from office recommended by the Tribunal in respect of allegations 7, 810, 11 and 13 against the Applicant was disproportionate to the misconduct found that is whether it might be unreasonable in the Wednesbury sense.

(i) His Honour erred in law by finding that the Plaintiff had not make out an arguable case for the grant of leave.

5. ORDERS sought:

(a) that the refusal of the National Court to grant leave for judicial review of the Decision and recommendations of the Tribunal be reversed.

(b) In the event that such relief is granted, an order to remove into the Supreme Court for judicial review and quashing of the Decision and Recommendations made by the Tribunal that the Applicant was guilty of 12 counts of misconduct in office (the Decision) and that the Applicant be dismissed as a member of the National Parliament (the Recommendations) and quashing of the dismissal from office of the Applicant by the Head of State and the substitution therefore of penalties (if any) determined by the Supreme Court.

6. The Grounds on which the order (as set out in Paragraph 5(b) above) is sought are as follows:
   
   • (a) The applicant did not file an appeal to the Supreme Court, seeking a review of the National Court’s decision. The Applicant instead sought to invoke the inherent jurisdiction of the Supreme Court by invoking Section 155(4) of the Constitution, which application the Supreme Court dismissed on 24 May 2002. The Applicant has lost that right to Appeal. The Applicant has not had the opportunity to argue fully the merits of his case before any court. The power under Section 155(2)(b) is a reserved supervisory power and is available to be invoked upon the discretion of the court and it is in the interests of justice and in the interests of the people of his province who elected him as their Governor and member of the Sixth National Parliament, that he be given that opportunity to argue the merits of his case.
     
   • (b) The Supreme Court has jurisdiction to judicially review the Decision and Recommendations pursuant to Constitution 155(4).
     
   • (c) It is appropriate for the Decision and Recommendations to be judicially reviewed by the Supreme Court (it having jurisdiction) and not a single judge of the National Court under the procedure outlined in Order 16 of the National Court Rules, more particularly as questions arising in such a review would include an interpretation of Section 28(5) and the provisions of Section 37 of the Constitution to determine whether a leadership Tribunal has jurisdiction to make findings of breaches of the criminal law and in so doing whether it may adopt a standard of proof other than proof beyond a reasonable doubts.
     
   • (d) It is appropriate and important that the question of the jurisdiction of Leadership Tribunals in respect of findings of breaches of or offences under the criminal law be determined by the court for the guidance of Leadership Tribunals appointed in the future to hear allegations against leaders of misconduct in office.
     
   • (e) The Applicant wishes to exercise his rights under Section 50 of the Constitution to be elected to public office that is to be elected to be a member of the seventh National Parliament of Papua New Guinea and that he be given a reasonable opportunity to do so as provided by Section 50 of the Constitution.
     

If the relief sought by the applicant is granted and the Applicant proceeds in the National Court for judicial review of the Sawong Tribunal’s Decision and Recommendations, and if the National Court were to quash the findings of the Tribunal, it is submitted that the National Court has n o power to quash the dismissal from office of the Applicant by the Head of State and substitute its own penalties for those of the Tribunal.

In terms of the Constitutional right of the Applicant to be given a reasonable opportunity to be elected to elective office, as conferred by Section 50 of the Constitution, the Applicant should have the right to a hearing by the Supreme Court on the question of whether the findings of the Sawong Tribunal are in error, in time to know if he is eligible for election as a member of the forthcoming Parliament."

It is immediately clear to us that this application is couched in terms similar to the earlier judicial review proceedings in SCR 13 of 2002. Counsel for the Public Prosecutor during his submissions went through both applications thoroughly and pointed out the similarities. We are familiar with the earlier proceedings because we were members of the Court that heard that application. The Court in the earlier proceeding with a majority of 4-1 ruled that leave should be declined. Kapi DCJ with whom three other members of the Court agreed stated:

"In the present case, the applicant seeks to invoke the discretionary power of the Court without first invoking the right to appeal under the Supreme Court Act. This is a deliberate choice by the applicant and his lawyers. He cannot invoke the discretionary power under s 155 (2) (b). This is a clear abuse of the process of the court and I would dismiss it."

We are satisfied that the two applications are the same in all respects: (i) the nature of the remedy sought is in accordance with s 155 (2) (b) of the Constitution (ii) the subject-matter of the review is the same, namely, to review and reverse the same decision of the National Court (Sheehan J) dated 14th March 2002 and (iii) the parties are the same, namely, the Applicant and the Public Prosecutor.

The Applicant seeks to review the same decision a second time. The inevitable conclusion is that this is an abuse of the process of court. The Supreme Court in Titi Christian v Rabbie Namaliu & The State (Titi Christian Case) (Unreported Judgment of the Supreme Court dated 18th July 1996) held that it was an abuse of the process of court to bring the same matter again to Court (see Chief Justice at page 20, Andrew J. at page 82 and Sevua J. at page 88).

Moreover, the principles of res judicata and estoppel would apply in the circumstances. In Titi Christiana Case (supra), the Chief Justice set out the common law principles of res judicata and issue estopple and concluded that Titi Christian was estopped from raising the same issues already determined by the Supreme Court in Isidore Kaseng [1995] PNGLR 481. Kapi DCJ reached the same conclusion so far as these principles applied to the same parties (see Titi Christian Case (supra) pages 35-36). Salika J. agreed with the Chief Justice on this issue at page 73 and Andrew J. agreed on page 82).

Mr Amet (Jr), counsel who represented the Applicant on the substantive application did not contest these principles but sought to distinguish the circumstances in SCR 13 of 2002 and the present application. He submits that the application in SCR 13 of 2002 was filed when the appeal period was still current. He submits that in the present case, the appeal period had expired and therefore it is different. He relies on a number of applications which were filed after the appeal period had expired such as in Avia Aihi v The State [1981] PNGLR 81.

We do not consider that this is a valid distinction. This argument proceeds on the false premise that a person has a right to apply for orders under s 155 (2) (b) before the appeal period expires and another distinct right to apply for same orders after the appeal period expires. This proposition is contrary to Application by Jefferey Balakau (Unreported judgment of the Supreme Court dated 25 October 1996, SC529) and we reject it. The Applicant had a right to appeal against the decision of the National Court within the time prescribed under the Supreme Court Act. He deliberately exercised the right not to appeal upon legal advice and instead filed judicial review under s 155 (2) (b). We held this was an abuse of the process of court.

The cases that Mr Amet relies on cannot give the Applicant any comfort. First, none of those cases deal with any deliberate decision not to appeal by applicants, and secondly, they did not involve filing of a second application under s 155 (2) (b) to deal with the same matter as in the present case.

The fact that the Applicant filed the present application after the appeal period has expired, makes no difference. In order to obtain leave for judicial review under s 155 (2) (b), the Applicant has to satisfy the Court why he has allowed the statutory appeal period to expire (see Avia Aihi v The State [1982] PNGLR 44). A deliberate choice not to appeal can hardly be regarded as a "special and substantive reason", "very exceptional circumstance", "satisfactory and substantive reason" or "cogent and convincing reason and exceptional circumstance" for granting leave for judicial review.

Moreover, the Applicant has failed to file any other evidence to convince us why leave should be granted. There is no credible explanation why the Applicant allowed the period from the time the appeal period expired or alternatively, after the Supreme Court handed down its decision on 24th May 2002 to the date the present application was filed, a period of nine (9) months. The onus is on the Applicant to demonstrate why this Court should give him leave for judicial review.

For all these reasons, we would dismiss the application.

We note that the Applicant seeks an alternative remedy under paragraph 5 (b) of the application and the grounds on this alternative remedy are set out under paragraph 6 of the application. This alternative remedy seeks orders under s 155 (4) of the Constitution. Mr Amet did not pursue this alternative orders in his submissions. We take it from this that he is not pursuing these orders.

This remedy was sought in the original application in SCR 13 of 2002. This however, was abandoned. We do not consider that the Applicant can seek to review the decision of the National Court and/or the Leadership Tribunal after having failed to review the decision under s 155 (2) (b).

What the Applicant ought to have considered was whether to review the decision of the Tribunal under O 16 of the National Court Rules or seek to review the decision under s 155 (4). The Applicant decided to do this by way of O 16. He cannot now seek to proceed by way of s 155 (4). That would be an abuse of the process of court.

Having dismissed the substantive application, it would follow as a matter of course that the interim order made by Los J and the nomination made by the Applicant pursuant to the order would be rendered null and void.

The interim order made by Los J raises important issues of law and therefore we should address them.

The Interim Orders by Los J.

The first issue we raised was the jurisdiction of this Court to review a decision of a single judge of the Supreme Court. Counsel for both parties assumed that we have the power to review the decision.

We consider that the Court has power to set aside a decision of a single judge of the Supreme Court. The Supreme Court is established by s 160 of the Constitution.

Section 155 (2) (a) gives power of review on appeal procedure. We are not concerned with this power in the present case.

Section 155 (2) (b) gives inherent power to review a decision of the National Court. We have exercised this power in the substantive application in the present case (SCR 8 of 2003).

Section 155 (2) (c) makes reference to powers granted by other provisions of this Constitution or any other law. A power which falls under this category is s 155 (4) which grants concurrent jurisdiction to the National and Supreme Courts to make orders in the nature of prerogative writs and such other orders to do justice in particular circumstances of a case. Whilst prerogative orders involve supervisory powers over inferior courts, we consider that the Supreme Court has power to review a decision of a single judge of the Supreme Court where the single judge usurps the powers of the Supreme Court.

The powers of the Supreme Court may be exercised by three (3) judges (s 161 (2) of the Constitution). The powers of the Supreme Court may be exercised by a single judge if such power is given by an Act of Parliament or the Supreme Court Rules under s 162 (2) of the Constitution which provides:

"(2) In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together."

So far as appeals are concerned, a single judge of the Supreme Court may exercise powers set out under the Supreme Court Act, ss 5 and 10. However, there is no equivalent provision as far as a review under s 155 (2) (b) is concerned. The provisions of Supreme Court Act are not applicable to judicial reviews under s 155 (2) (b).

It follows from this that a single judge of the Supreme Court has no power to make any orders under s 155 (2) (b) of the Constitution. This position has been made clear in a series of Supreme Court decisions. Kapi DCJ examined this question in Viviso Seravo & Electoral Commission v John Giheno (Unreported Judgment of the Supreme Court dated 15th January 1998, SC539). The question raised was whether a single judge of the Supreme Court has power to make an interim order to stay the proceedings in the National Court pending the determination of judicial review in the
Suprem Court. He concluded that:

"The inherent jurisdiction under s 155 (2) (b) is specifically granted to the Supreme Court and there is no other provision in the Constitution or any other law which stipulates that this jurisdiction may be exercised by a single judge of the Supreme Court."

The question was referred to the full Supreme Court to deal with. The full Supreme Court (Amet CJ., Kapi DCJ., Salika J.) acknowledged the ruling without any disapproval (see SC555).

In Wauni Wasia Raneyeta v Masket Iangalio & Electoral Commission (Unreported Judgment of the Supreme Court dated 17th July 1998, SC562) powers of a single judge of the Supreme Court in a judicial review under s 155 (2) (b) was again considered. The Court (Kapi DCJ., Los J., Sevua J) made reference to Viviso Seravo & Electoral Commission v John Giheno (supra) and concluded:

"There is no Act of Parliament which regulates its practice and procedure. Unless the power of review and all related matters connected with a review is given to a single judge of the Supreme Court, all such matters must be dealt with by the full bench of the Supreme Court (see Viviso Seravo & Electoral Commision v John Giheno (supra)). We have reached the conclusion that the Chief Justice did not have power to give the direction."

These principles were again approved in David Lambu v Peter Ipatas & Electoral Commission (Unreported Judgment of the Supreme Court dated 30th April 1999, SC601)

Los J. asked the right question:

"At this point in time I must address whether this court has any jurisdiction or power to entertain such an application."

He then concluded:

"Under s 5 (1) and section 10 of the Supreme Court Act the National Court may give certain interim orders and directions pending determination of substantive proceedings. I am aware of some contrary view. But in this case I invoke the provisions of section 155 (4) of the Constitution to grant an interim order to preserve the right that the applicant is seeking to preserve."

We consider that Los J fell into error when he failed to deal with the "contrary view" in the decisions of the Supreme Court referred to above. In particular His Honour was a member of the bench in Wauni Wasia Renyeta v Masket Iangalio & Electoral Commission (supra). He simply relied on s 155 (4) of the Constitution. This provision does not give a single judge of the Supreme Court jurisdiction to make interim orders. He ought to have referred the matter to the full Supreme Court to deal with the interim orders.

We would set aside the interim orders for these reasons.

Even if a single judge of the Supreme Court has power to make interim orders, Los J ought to have disqualified himself from considering the matter. In the earlier substantive application (SCR 13 of 2002) his Honour expressed an opinion on the merits. In fact His Honour had disqualified himself from dealing with the application by the Applicant to enforce his right under s 50 of the Constitution on the very basis that he has expressed an opinion on the merits.

In addition, Los J. ought to have refused the application having regard to all the pertinent facts. Counsel who appeared before him, Mr David Lora, relied on an affidavit of the Applicant who simply set out the facts relating to the subsequent proceedings of the Leadership Tribunal and the refusal by the National Court to grant leave for judicial review, and omitted to set out all the relevant facts relating to all the court proceedings which finally settled the dismissal of the Applicant by the Leadership Tribunal and the fact that the Applicant was unable to contest the General Elections in June 2002. Mr Lora admitted during submissions before us that he was himself not fully aware of the facts relating to the history of the matter and only became aware of the full facts during this application. We understand that he was not involved in the earlier proceedings.

We also note that My Kuvi appeared on behalf of the Solicitor-General and we understand that he had no involvement in the previous proceedings We consider that it is the duty of counsel to disclose all relevant facts to the Court.

While counsel may not have been aware of the relevant facts, we cannot accept that Los J was not aware of the relevant facts. He was fully acquainted with the background to the application and ought to have drawn the attention of counsel to the pertinent facts. In particular, he ought to have had regard to the substantive proceeding in SCR 13 of 2002, the application made under s 57 of the Constitution (MP 509 of 2002) and the appeal to the Supreme Court (SCA 49 of 2002), and considered the substantive application in the present case in the light of those facts. In fact we conclude that he ought to have concluded that the application was an abuse of the process of court and the Applicant would have been estopped from bringing the same matter again.

We are also concerned that the interim order was not made subject to the determination of the substantive application. Los J gave no consideration to the urgent determination of the substantive application in view of the imminence of the supplementary elections in the Southern Highlands Provincial Electorate. He handed down his decision on 26th February 2003 and ought to have directed the substantive hearing without delay.

For all these reasons we would set aside the interim orders made by Los J. In the result the nomination by the Applicant is invalid as he cannot hold any elective office until after three (3) years in accordance with s 31 of the Constitution.

The formal order of the Court is that the substantive application SCR 8 of 2003 is dismissed, the order of Los J dated the 26th February 2003 is set aside and the nomination by the Applicant in the Southern Highlands Provincial Electorate is null and void. The Applicant should pay Public Prosecutor’s costs of the proceedings.
_______________________________________________________________
Lawyers for Anderson Agiru : YAPAO & PERI LAWYERS
Lawyer for Public Prosecutor: CHRONOX MANEK