Michael Nali v The Honourable Justice Elenas Batari [2006] N3015

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  • About

    Michael Nali successfully challenged findings of misappropriation and breach of the Leadership Code against him by a Leadership Tribunal on the grounds of apprehended bias. A new Leadership Tribunal to re-hear the charges was ordered.

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  • N3015

    Papua New Guinea

    [In the National Court of Justice]

    OS 414 OF 2004

    MICHAEL NALI
    Plaintiff

    AND

    THE HONOURABLE JUSTICE ELENAS BATARI (as Chairman) AND THEIR
    WORSHIPS SENIOR MAGISTRATE NIALLIN KITEIAP AND SENIOR
    MAGISTRATE THOMAS VOGUSANG CONSTITUTING THE LEADERSHIP
    TRIBUNAL
    Defendants

    WAIGANI: SALIKA, J
    2005: 20 April
    2006: 10 March

    Judicial Review – Leadership Tribunal Decision – Order of evidence to be given –
    Applicant gave evidence after his witnesses – Queried at hearing – no ruling or order
    made by Tribunal as to the appropriateness of applicant giving evidence last – Tribunal
    allowed applicant to give evidence last – whether tribunal could discount the
    applicant’s evidence after allowing applicant to give evidence last – Tribunal erred in
    not giving directions or order as to the appropriateness of applicant giving evidence
    last – Error sufficient to quash decision of Leadership Tribunal.

    Counsel:
    Mr F Griffin for the Plaintiff
    Mr F Kuvi for the Defendants

    10 March, 2006

    This is an application for Judicial Review of a decision of the Defendants sitting as a
    Leadership Tribunal by way of an originating summons. The originating summons seeks
    the following orders pursuant to Order 16 Rule 3 of the National Court Rules.

    1. An order in the nature of certiorari quashing the finding of the
    Defendants on 2 April 2004, that the Plaintiff was guilty of misconduct
    in office because he was in breach of the provisions of S.27(5)(b) of the
    Constitution.

  • Page 2 of 34

  • 2. An order in the nature of certiorari quashing the finding of the
    Defendants on 2 April 2004, that the Plaintiff was guilty of misconduct
    in office because he was in breach of the provisions of Section 5(10 of
    the Organic Law on the Duties and Responsibilities of Leadership.
    3. An order in the nature of certiorari quashing the finding of the
    Defendants on 2 April 2004, that the Plaintiff was guilty of misconduct
    in office because he was in breach of Section 27(5)(b0 of the
    Constitution.
    4. An order in the nature of certiorari quashing the finding of the
    Defendants on 2 April 2004, that the Plaintiff was guilty of misconduct
    in office because he was in breach of the provisions of Section 5 (1) of
    the Organic Law on the Duties and Responsibilities of Leadership
    5. As order in the nature of certiorari quashing the recommendation on
    penalty imposed by the Defendants on the Plaintiff on 29 April, 2004,
    that he be dismissed as Parliamentary member of the Mendi Open
    Electorate.
    6. Such further or other orders as the Court sees fit.
    7. That the time for the entry of this order be abridged to the time of
    settlement by the Registrar, which shall take place forthwith.

    Order 16 Rules 3 provides:

    “3 Grant of leave to apply for Judicial Review

    (1) No application for judicial review shall be made unless the leave
    of the Court has been obtained in accordance with this Rule.

    (2) An application for leave must be made by originating summons
    ex parte to the Court, except in vacation when it may be made to
    a Judge in Chambers, and must be supported –
    (a) by a statement, setting out the name and description of the
    applicant, the relief sought and the grounds on which it is
    sought; and
    (b) by affidavit, to be filed before the application is made,
    verifying the facts relied on.

    (3) the applicant must give notice of the application to the Secretary
    for Justice not later than two days before the application is made
    and must at the same time lodge with the Secretary copies of the
    statement and every affidavit in support.

    (4) Without prejudice to its powers under Order 8 Division 4, the
    court hearing an application for leave may allow the applicant’s
    statement to be amended, whether by specifying different or
    additional grounds or relief or otherwise, on such terms, if any,

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  • as it thinks fit.

    (5) The Court shall not grant leave unless it considers that the
    applicant has a sufficient interest in the matter to which the
    application relates.

    (6) Where leave is sought to apply for an order of certiorari to
    remove for the purpose of its being quashed any judgment, order,
    conviction, or other proceedings which is subject to appeal and a
    time is limited for the bringing of the appeal, the court may
    adjourn the application for leave until the appeal is determined
    or the time for appealing has expired.

    (7) If the Court grants leave, it may impose such terms as to costs
    and as to giving security as it thinks fit.

    (8) Where leave to apply for judicial review is granted, then –
    (a) if the relief sought is an order of prohibition or certiorari
    and the Court so directs, the grant shall operate as a stay
    of the proceedings to which the application relates until
    the determination of the application or until the Court
    otherwise orders;
    (b) if the other relief is sought, the Court may at any time
    grant in the proceedings such interim relief as could be
    granted in an action begun in writ.

    The plaintiff was granted leave to apply for judicial review on 9 September 2004 by the
    National Court. He has thus complied with the provisions of Order 16 Rule 3 of the Rules
    of the National Court.

    I heard the review application on the 20 April 2005. Due to other judicial commitments I
    was not able to attend to this matter as quickly as I ought to have.

    The plaintiff’s grounds for seeking judicial review are: –

    1. The Leadership Tribunal erred in law in that it made findings of guilt in
    respect of Allegations 1, 2, 4 and 5 when there was no evidence before the
    Tribunal that the Leader and his relatives, notwithstanding that he
    deposited the subject fund into his personal accounts, benefited directly
    from the use of such funds, such that the Tribunal could make those
    findings of guilt.
    2. There appeared to be a real likelihood of bias and impartiality when the
    there appeared to be a real likelihood of bias and impartiality when the
    Leadership Tribunal held that the leader had the onus to explain and had
    not explained how and why he received funds under allegations 1 and 2

  • Page 4 of 34

  • when he did explain such in his evidence.
    3. the Leadership Tribunal after finding the leader may not have personally
    benefited from the funds under allegations 1 and 2, unreasonably and
    irrationally held that the leader did use the funds for his own benefit after
    he improperly and illegally received it in the first place.
    4. The Leadership Tribunal unreasonably and irrationally made findings that
    the Leader had recently invented “Exhibit W” when there was no factual
    or legal basis for such a finding.
    5. The Leadership Tribunal unreasonably and irrationally made findings that
    the Leader’s failure to create a trust account in relation to allegations 4
    and 5 was improper when the creation of such a trust account by a Leader
    was contrary to and in breach of s.15 of the Public finance (Management)
    Act.
    6. The Leadership Tribunal acted ultra vires when it allowed and made
    amendments to allegations 4 and 5 of the charges against the Leader. That
    is, that the words “District Development Program” were amended and
    replaced with the words “District Support Grants” and the figure
    “K610,000.00” was amended and replaced with the figure “K460,000.00”
    in the allegations 4 and 5. Thereby re-drawing the charges to the prejudice
    of the Plaintiff and in excess of its powers contained in sections 28(1)(g)
    and (1a) of the Constitution and s.27(4) of the Organic Law on the Duties
    and Responsibilities of Leadership.
    7. The Leadership Tribunal unfairly and in breach of the rules of natural
    justice allowed evidence i.e. “Exhibit N.T” to be tendered late during the
    hearing when such evidence was never disclosed to the leader at anytime
    before the Tribunal conducted its hearing.
    8. The Leadership Tribunal acted unfairly and in breach of the rules of
    natural justice because the time allowed to the leader to prepare his
    defence was insufficient causing prejudice to the leader.
    9. There appeared to be a real appearance of bias and error of law on the
    part of the Leadership Tribunal by it holding the weight to the given to the
    Leader’s evidence should be discounted because of the order of the
    evidence given in the leaders defence.
    10. The Leadership Tribunal erred inlaw when determining penalty by failing
    to give sufficient or proper weight to its own finding that the leader never
    intentionally applied public money to purposes to which it could not
    lawfully be applied.
    11. The Leadership Tribunal erred in law in determining the penalty against
    the Leader when it did not give sufficient and proper weight to the conduct
    of the Finance Department, the Office of Rural Development and Mr
    Anderson Agiru, as extenuating circumstances.

    1. Background:

    This application for judicial review by the applicant seeks to review the decision of the

  • Page 5 of 34

  • leadership tribunal constituted by Justice Batari as Chairman and Senior Magistrates,
    Nialyn Kitiap and Thomas Vogusang. The Leadership Tribunal found the applicant guilty
    of misconduct in office and recommended that he be dismissed from office.

    It all started on 24 November 2003 when the Public Prosecutor referred seven allegations
    of misconduct in office to the Leadership Tribunal, following an Ombudsman
    Commission investigation. The allegation concerned the manner in which Mr Nali dealt
    with two sets of funds of public money that had come under his control. The funds were:

    • K50,000.00, the then Governor of Southern Highlands, Anderson Agiru
    gave him in 2000; and
    • K600,000 which was the District Support Grant for the Mendi Open
    Electorate during 2001 and 2002.
    The allegation against the applicant were:-

    Allegation 1:

    Having received K50,000.00 of public money in the form of a cheque from the
    Governor of Southern Highlands Province, Mr. Anderson Agiru, drawn against
    the Southern Highlands Province Regional member’s Trust Account, being
    funds beneficially held for the development of the Southern Highlands
    province; Mr Nali.

    (i) deposited the cheque into his personal bank account No 111
    219046 held at the Port Moresby branch of the ANZ Bank; and
    (ii) applied a significant part of that public money to his personal
    use;
    (iii) made approximately 11 unverifiable and/or improper debit
    transactions totalling about K46,738.36 by writing out cheques to
    pay cash.
    (iv) Made approximately 3 unverifiable and/or improper debit
    transactions totalling about K3,703.30 by writing out cheques to
    “Steel Industries” and {Service Centre”.
    (v) Made approximately 11 unverifiable and/or improper debit
    transactions totalling about K1,800.00 through automatic teller
    machine (ATM) withdrawals to obtain cash;
    (vi) Made approximately 11 unverifiable and/or improper debit
    transactions totalling about K3,469.64 through electronic funds
    transfer at point of sale (EFTPOS) transactions for personal
    goods and services; and
    (vii) Failed to properly acquit that public money;

    Thereby failing to carry out his obligations as a leader under s.27(1) and 27(2)
    and being guilty of misconduct in office under s.27(5)(b) of the Constitution.

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  • Allegation 2

    Having received K50,000.00 of public money in the form of a cheque from the
    Governor of Southern Highlands Province, Mr Anderson Agiru, drawn against
    the Southern Highlands Province Regional Member’s Trust Account, being
    funds beneficially held for the development of the Southern Highlands
    Province, Mr Nali.

    (i) Deposited the cheque into his personal bank account No 111
    29046 held at the Port Moresby branch of the ANZ Bank; and
    (ii) applied a significant part of that public money to his personal
    use; and
    (iii) made approximately 11 unverifiable and/or improper debit
    transactions totalling about K46,738.36 by writing out cheques to
    pay cash; and
    (iv) made approximately 3 unverifiable and/or improper debit
    transactions totalling about K3703.30 by writing out cheques to
    ‘Steel Industries” and “Service Centre”; and
    (v) made approximately 11 unverifiable and/or improper debit
    transactions totalling about K1,800.00 through automatic teller
    machine (ATM) withdrawals to obtain cash; and
    (vi) made approximately 11 unverifiable and/or improper debit
    transactions totalling about K3,469.64 through electronic-funds-
    transfer-at-point-of-sale (EFTPOS) transactions for personal
    goods and services; and
    (vii) failed to properly acquit that public money;

    thereby directly accepting a benefit and using his official position for the benefit
    of himself and being guilty of misconduct in office under S.5(1) of the Organic
    Law on the Duties and Responsibilities of Leadership.

    Allegation No 4:

    Having been allocated K600,000.00 of public money in the form of five cheques
    by the National Government under the Discretionary Support Grants, being
    funds intended for the development of the Mendi Open electorate in respect of
    the years 2001 and 2002, Mr Nali –

    (i) deposited those cheques into his personal bank account No 202
    006 78152 held at the Waigani branch of the Papua New Guinea
    Banking Corporation; and
    (ii) failed to ensure that the public money was properly applied to the
    rural infrastructure projects for which hit had been allocated;
    and
    (iii) applied a significant part of that public money to his personal use

  • Page 7 of 34

  • and the use of his associates; and
    (iv) made approximately 63 unverifiable and/or improper debit
    transactions totalling about K281,700.00 by writing out cheques
    to pay cash; and
    (v) made approximately 15 unverifiable and/or improper debit
    transactions totalling about K95,500.00 by writing out cheques
    payable to individuals; and
    (vi) failed to properly acquit that public money.

    Thereby failing to carry out his obligations as a leader under s.27(1) and 27(2)
    and being guilty of misconduct in office under s.27(5)(b) of the Constitution.
    Allegation No 5:

    Having received K600,000.00 from the National Government, being public
    money allocated for the development of the Mendi Open electorate in respect of
    the years 2001 and 2002, Mr Nali –

    (i) deposited those cheques into his personal bank account No 202
    006 78153 held at the Waigani branch of the Papua New Guinea
    Banking Corporation; and
    (ii) failed to ensure that public money was properly applied to the
    rural infrastructure projects for which it had been allocated.
    (iii) Applied a significant part of that public money to his personal
    use and the use of his associates; and
    (iv) Made approximately 63 unverifiable and/or improper debit
    transactions totalling about K281,700.00 by writing out cheques
    to pay cash; and
    (v) Made approximately 15 unverifiable and/or improper debit
    transactions totalling about K95,500.00 by writing out cheques
    payable to individuals;
    (vi) Failed to properly acquit that public money.

    Thereby directly accepting a benefit and using his official position for the
    benefit of himself and being guilty of misconduct in office under s.5(1) of the
    Organic Law on the Duties and Responsibilities of Leadership.

    Applicants submission:

    The applicant made the following submissions:

    Ground 1:

    The Leadership Tribunal erred in law in that it made findings of guilt in respect of
    Allegations 1,2,4 and 5 when notwithstanding that the Plaintiff deposited the
    subject funds into his personal account, there was no evidence before the Tribunal

  • Page 8 of 34

  • that the Plaintiff or his relatives, benefited directly from the use of such funds,
    such that the Tribunal could make those findings of guilt.

    • It was submitted by the Plaintiff that the Leadership Tribunal erred in law
    in that it made findings of guilt in respect of Allegations 1,2,4 and 5 when
    there was no evidence before the Tribunal that the Leader and his
    relatives, notwithstanding that he deposited the subject funds into his
    personal account, benefited directly from the use of such funds, such that
    the Tribunal could make those findings of guilt.
    • In relation to allegations 1 and 2, the Tribunal found at p.15 par.3 of its
    Decision, that firstly the plaintiff didn’t know the source of the funds.
    Secondly, that the funds came from Mr Agiru out of the Southern
    Highlands Provincial Government fund. Thirdly the Tribunal didn’t
    believe the K50,000 payment to the Plaintiff was made without his
    “prompting”.
    • There is no finding – no evidence cited for the last conclusion or why such
    prompting would render the Plaintiff guilty of misconduct. If he did not
    know the source of the funds, why “he has to explain why he was paid that
    money from the public purse”
    • Yet despite these conclusions, the Tribunal specifically found that the
    Plaintiff or his family “may not have benefited from the public money” On
    that finding alone the Plaintiff operation of by section 27(2) of the
    Constitution was not guilty of misconduct.
    • In relation to allegations 4 and 5, these were the charges that were
    amended by the Tribunal under objection from the Plaintiff, that the
    amended charge constituted a substituted charge. It had not been through
    the referral process and there was no adjournment or time permitted for
    the Plaintiff to consider his evidence. These arguments are addressed fully
    under Ground 6 below.

    Ground 2

    “There appeared to be a real suspicion of bias and partiality when the Leadership
    Tribunal held that the Leader had the onus to explain and had not explained how
    and why he received funds under allegations 1 and 2 when he did explain such in
    his evidence.”

    • It is submitted by the Plaintiff that there appeared to be a real appearance
    of bias and partiality when the Tribunal held at p.15 and para.3 of its
    Decision that the Plaintiff had the onus to explain and had not explained
    how and why he received funds under allegations 1 and 2, when at p.14 of
    the same Decision the Plaintiff explains such in his evidence. The plaintiff
    had also given his evidence of his explanation relating to allegations 1 and
    2, which his contained at pp.867 to 897 of Exhibit A (Volume 3).
    • The Supreme and National Courts have considered the tests for bias. The

  • Page 9 of 34

  • decisions of BOATENG V THE STATE [1990] PNGLR 342, NILKARE
    V THE OMBUDSMAN COMMISSION (1996) SC498 AND DIRO V
    JUSTICE AMET & ORS. [1995] PNGLR 411 have essentially adopted
    the statement from R v Liverpool City Justices; Ex parte Topping [1983]
    All ER 490 at p.494:
    • “Would a ‘reasonable and fair minded person sitting in a court and
    knowing all relevant facts have a ‘reasonable suspicion that a fair trial
    for’ the appellant was not possible’?”
    • These cases have also adopted the principle of Lord Hewart CJ in R V
    SUSSEX JUSTICE; EX PARTE McCARTHY (1924) 1 KB 256 that:
    • “…. A long line of cases shows that it is not merely some importance but is
    of fundamental importance that justice should not only be done, it should
    manifestly and undoubtedly be seen to be done…. Nothing is to done
    which creates even a suspicion that there has been an improper
    interference wit the course of justice”.
    • Hinchliffe J in Diro (supra) stated at p.421 that:
    • The applicant submitted that in the light of the Plaintiff’s explanation
    given in his evidence at the Tribunal proceedings that he assumed the
    K50,000.00 he had received had come from Mr Agiru’s discretionary fund
    and on that basis he acquitted the funds to Mr Agiru and copied the
    acquittals to the Office Rural Development, the Tribunal did give an
    appearance of bias and partiality when it stated that he had to explain why
    he was paid the money from the public purse and why he used his private
    account to keep and use the money. The plaintiff’s explanation was backed
    by his own actions as the Tribunal found.
    • The placing of the onus on the Plaintiff to prove that there had been no
    misconduct was a fundamental breach of the Plaintiff’s right to a fair
    process.
    • There might well be a requirement for a person to provide facts
    particularly within his knowledge. That had been done – the Plaintiff had
    given evidence of his knowledge of the relevant matter. The tribunal
    record of this is summarised at p.14 of its Decision. The full text of his
    evidence is at pp.867 to 897 of Exhibit A (volume 3).
    • Significantly the Plaintiff’s evidence is supported by his subsequent
    actions of accounting for the funds as the Tribunal found including the fact
    that he did not personally benefit.
    • It was submitted that,, what the Tribunal failed to do was to assess that
    evidence, the Plaintiff’s evidence and give reasons why it did not accept it.
    • It is respectfully submitted that to any reasonable person such a statement
    that the plaintiff had the onus to explain why, when in fact he did explain
    would have given a reasonable appearance of bias and partiality on the
    part of the Tribunal.

    Ground 3

  • Page 10 of 34

  • The leadership Tribunal after finding that the Leaders may not have personally
    benefited from the funds under allegations 1 and 2, unreasonably and irrationally
    held that the Leader did use the funds for his own benefit after he improperly and
    illegally received it in the first place”.

    • the Plaintiff submitted that the Tribunal after finding that the plaintiff may
    not have personally benefited from the funds under allegations 1 and 2,
    nonetheless unreasonably and irrationally held that the Plaintiff did use the
    funds for his own benefit after improperly and illegally receiving it in the
    first place.
    • The Tribunal at para.3 of p.16 of its Decision stated that the Plaintiff “may
    not have personally benefited from the public money but the inference is
    overwhelming that the monies were used for his own benefit having
    improperly and illegally received it in the first place.”
    • The Plaintiff submitted that the above statement made by the Tribunal was
    unreasonable and irrational on the face of it. In the first part there was no
    evidence that the Plaintiff received the money knowing he was acting
    illegally. Despite the Tribunal finding that the plaintiff may not have
    personally benefited from the public money, in the second part they state
    that he used it for his own benefit.
    • It was submitted that such a decision must be seen as irrational as it is not
    only contradictory in itself but offers no explanation for the contradictions.
    • Once the fact was established by the Tribunal that the Plaintiff had not
    personally benefited from the moneys – it was not logical – to say that the
    leader did in fact benefit.

    Ground 4

    The leadership Tribunal unreasonably and irrationally made findings that
    the leader had recently invented “Exhibit W” when there was no factual or
    legal basis for such a finding.

    • The applicant submitted that the Tribunal unreasonably and irrationally
    made findings that the Plaintiff had recently invented “Exhibit W” at pp.19
    to 20 of its decision, when there was no failure to cross-examine and no
    inconsistency in the plaintiff’s evidence.
    • This ground is founded on serious breach of procedural fairness. At p.19
    para.4 of its decision the tribunal states that it “suspects that Exhibit W is a
    recent invention”.
    • It was submitted that this is based wholly on the Tribunal’s ruling on the
    way the applicant conducted his defence on this issue, cross examination
    or lack of cross-examination, supplying evidence which the prosecution
    couldn’t prove.
    • The positive evidence is not assessed by the Tribunal against the
    prosecution evidence. It is simply suspected it as being a recent invention,

  • Page 11 of 34

  • and the Plaintiff not believed.
    • The plaintiff carries no onus in the Leadership proceedings other than
    supplying information particularly within his knowledge. This is provided
    for under s.37(4)(a) and (f) of the Constitution. The Plaintiff is entitled to
    give evidence and have his evidence tested but he has no obligation to
    conduct his defence in a particular way.
    • The issues under this allegation are raised again at Ground 9 in these
    proceedings.

    Ground 5

    The leadership tribunal unreasonably and irrationally made findings that the
    Leader’s failure to create a trust account in relation to allegations 4 and 5was
    improper when the creation of such a trust account by a Leader was contrary
    to and in breach of s.15 of the Public Finance (Management) Act.

    • the plaintiff submits that the Tribunal unreasonably and irrationally made
    findings that the Plaintiff’s failure to create trust accounts in relation to
    allegations 4 and 5 was improper when it also made findings that the
    creation of such a trust account was in fact prohibited and therefore illegal
    i.e. that it was contrary to section 15 of the Public Finance (Management)
    Act 1995.
    • Section 15 of the Public Finance (Management) Act 1995, provides:

    21. Establishment of Trust Accounts

    Within the Trust Fund, Trust Accounts may be established as
    directed by the Minister or prescribed by any other law –

    (a) To receive moneys held by the State as Trustee;
    (b) To receive the proceeds of commercial or trading activities
    carried on by any arm, agents or instrumentality of the
    State; or
    (c) For such other purpose as may be approved by the
    Minister.

    • At p.13 par.4 of its decision, the Tribunal correctly noted that s.15 of the
    Public Finance (Management) Act, authorized the Minister for Finance to
    approve the establishment of Trust Funds. It further noted that any trust
    fund operated outside the Finance Minister’s “approval is deemed illegal
    under the Act”.
    • At p.13 par.4 of its Recommendations on Penalty, the Tribunal stated that
    the K50,000.00 payment from Mr Agiru was paid to the Plaintiff “from a
    purported Public Trust Fund established outside the Public Finance
    (Management) Act and therefore an illegal trust fund.

  • Page 12 of 34

  • • At p.29 par.4 of its decision, the tribunal found that current and past
    Members of Parliament had opened trust accounts from their District
    Support Grant funds. The tribunal noted that these members trust accounts
    may have not been legally established under s.15 of the Public Finance
    (Management) Act (p.30par.1), thus intimating that these trust accounts
    were illegally created.
    • The creation of a trust account outside section 15 of the Public Finance
    (Management) Act 1995, by a Leader is contrary to section 15. This
    position is clearly noted by the Tribunal in its statements above.
    • continuing at p.30 of its decision, the Tribunal in effect held that the
    plaintiff’s failure to create an illegal trust account for funds in relation to
    allegations 4 and 5 was improper and with respect irrational.
    • the plaintiff therefore submits that the tribunal unreasonably and
    irrationally made findings, at pp.29 to 30 of its decision, that the plaintiff’s
    failure to create trust accounts in relation to allegations 4 and 5 was
    improper when the creation of such an account by a leader was noted by
    the tribunal to be contrary to s.15 of the pf at pp.29 to 30 of its decision,
    that the plaintiff’s failure to create trust accounts in relation to allegations
    4 and 5 was improper when the creation of such an account by a leader
    was noted by the tribunal to be contrary to s.15 of the Public Finance
    (Management) Act 1995.
    • Simply stated the Tribunal’s conclusion was irrational and Wednesbury
    unreasonable when it said in effect that to be honest, the Plaintiff as a
    Leader should have created a trust account even though to do so would be
    illegal.

    Ground 6:

    The Leadership Tribunal acted ultra vires when it allowed and made
    amendments to allegations 4 and 5 of the charges against the Leader. That is,
    that the words “District Development Program” were amended and replaced
    with the words “District Support Grants”, and the figure “K610,000.00” was
    amended and replaced with the figure “K460,000.00” in allegations 4 and 5.
    Thereby re-drawing the charges to the prejudice of the Plaintiff and in excess
    of its powers contained in section 28(1)(g) and (1a) of the Constitution and s.
    27(4) of the Organic Law on Duties and Responsibilities of Leadership.

    • The Plaintiff submitted that the Tribunal acted ultra vires and in excess of
    its jurisdiction when it amended allegations 4 and 5, which was outside its
    powers to “investigate and determine” and “inquire into” matters
    “referred” to it under s.28(1)(g)(i) of the leadership Code and s.27(4) of
    the Organic Law on the Duties and Responsibilities of Leadership.
    • This ground refers to the Tribunal’s ruling contained at p.8 of its Decision,
    its findings at p.36 par.5 of the decision, Schedule 4.1 and pp.425 to 428,
    pp.451 to 490 and pp.551 of Exhibit A volume 2.

  • Page 13 of 34

  • • The duties of the Tribunal are prescribed by s.28(1)(g) and (1)(a) of the
    Constitution and s.27(4) of the Organic Law on Duties and
    Responsibilities of Leadership.
    • Under s.28(1)(g) of the Constitution and s.27(4) of the Organic Law on
    Duties and Responsibilities of Leadership, the Leadership Tribunals that
    are established under these laws are duty bound to investigate and
    determine any cases of… misconduct in the office referred to them” and to
    “make due inquiry into the matter referred…. Without regard to legal
    formalities or the rules of evidence, and may inform itself in such a
    manner as it thinks proper, subject to compliance with the principles of
    natural justice” (Emphasis by the writer).
    • The Tribunal relied on the decision of Jerry Singirok v Hon Justice Jalina
    and Ors N.2068, for dealing with the issues of amendment of the cases.
    That decision only dealt with the plaintiff, Jerry Singirok, being wrongly
    charged under s.12(1)(a) of the Organic Law on Duties and
    Responsibilities of Leadership when he in fact was found guilty of
    misconduct under s.12(1)(c) for which he was not charged under.
    • The tribunal at pp.554 to 555, relied on Sheehan J’s statement contained at
    p.9 of the Singirok case where he said:-

    “While failure to cite the appropriate sub subparagraph of section
    12 can be said to be an error of law on the face of the record, the
    discovery of error is not a self executing invalidation of the
    Tribunal finding In Judicial Review the determination of the
    appropriate relief, if any, remains in the discretion of the Court. In
    this case I am satisfied that such error is quite insufficient to have
    any finding of the Tribunal set aside because it is not an error in
    any way affecting the substance of the decision.

    The misquotation of the enumeration of the appropriate sub
    subparagraph of s.12 detailed and set out in the charge and in the
    Tribunal’s decision, was, I am satisfied an insignificant error. The
    charge itself clearly states and shows the intent of the charge, one
    clearly understood and addressed by the Tribunal. Equally clearly,
    there was no misapprehension of the nature and content of the
    charge on the part of the applicant.”

    • At p.10 Sheehan J further stated:

    “Nor could it be said that the error of enumeration in allegation
    two (2) has prejudiced the applicant in any way or caused him
    injustice. Such could only be said to have occurred if the error
    precluded him from raising some valid defence that would lead as
    of right to a finding that he was not guilty of the charge. The
    allegation which was correctly understood by the applicant

  • Page 14 of 34

  • counsel and the Tribunal alike does not support such claim. I am
    satisfied that had the error as to the proper sub-section been
    adverted to at any time during the Tribunal Inquiry there would
    have ready acknowledgement by all parties that the correct
    citation was section 12 (1) (c) and the appropriate amendment
    made”.

    • The applicant submitted that the Singirok case did not deal with an
    application for an amendment. In fact it dealt with a minor matter which
    went to the facts as they were understood by the parties. There was no
    alteration or change of the charge – the charge understood and argued by
    all parties was simply incorrectly ‘named’ by or even in citation of the
    appropriate section.
    • In the present case, the evidence the Plaintiff was to have responded to
    before the amendment was made, related to the facts that were contained
    in the original charges. Had the charge proceeded as it was referred and
    for which the Plaintiff had prepared his defence, he would have
    successfully defended it. He would have been entitled to an acquittal – a
    finding that he had not been guilty of misconduct.
    • The applicant submitted that if he was not acquitted he was obliged to face
    a fresh charge for which he had not been referred, had not been charged
    for by the Public Prosecutor and for which inadequate opportunity was
    given for him to respond.
    • The Applicant submitted that in any event this Honourable Court should
    adopt the statements of the Leadership Tribunal in Re Andrew Kumbakor
    (2003) N2363 relating to a Leadership Tribunal’s duties at p.4 where it
    said:-

    “The tribunal’s duty to ‘inquire’ or ‘investigate and determine’ the
    matter referred to it is not intended to confer on the tribunal the
    traditional prosecutorial function of the Public Prosecutor… The
    tribunal’s function is to simply inquire into and determine the truth
    or otherwise of these allegations, without resort to technical rules
    of procedure and evidence. Its powers include summoning relevant
    documents and witnesses to give evidence and/or relevant
    documents, which may be over-looked by the parties.”

    • The Applicant submitted that a Leadership Tribunal’s inquiry is
    restricted to those allegations of misconduct in office referred to it as
    pleaded in the referral document. He said Leadership Tribunals have no
    inherent or conclusive jurisdiction to alter or re-draw those allegations or
    charges of the referral where the alteration has the effect, as it did here, or
    substantially changing the nature of the charge.
    • It could not be said that changing an allegation from “you stole
    K610,000 from the District Development program” to “You stole

  • Page 15 of 34

  • K460,000 from the District Support Grants,” is not a major change of
    charge. The Plaintiff further submits that the time given to the Plaintiff to
    consider the amendments before having to proceed was inadequate and
    prejudiced his defence preparation to respond and defend the amended
    charge.
    • It is submitted that this Honourable Court adopt the statements in
    Kumbakor (supra) at p.5 of that decision that:-

    “There is one other important jurisdictional point to make. The scheme of
    provisions of the Leadership Code and the ORGANIC LAW ON DUTIES
    AND RESPONSIBILITIES OF LEADERSHIP is that the tribunal’s
    jurisdiction to inquire into the matter before it is defined by reference to
    the matter “referred” to it by the Public Prosecutor. In the past as in the
    present case, the Public Prosecutor developed the practice of presenting
    formal charges of misconduct in office, which made reference to the
    relevant duty in the Constitution and the ORGANIC LAW ON DUTIES
    AND RESPONSIBILITIES OF LEADERSHIP and the relevant factual
    parties. These charges are accompanied by the Statement of Reasons
    prepared by the Commission as required by the ORGANIC LAW ON
    DUTIES AND RESPONSIBILITIES OF LEADERSHIP, s.27(2). It is our
    view that the tribunal’s inquiry is restricted to those allegations of
    misconduct in office as pleaded in the referral documents. The tribunal
    itself has no power to alter or re-draw those allegations or charges as it
    pleases.

    As to the security of the evidence, the evidence must support the wording
    of those charges in order to sustain the charge. And because the
    consequences of the most serious kind flow from the allegations, the
    standard is indeed a high one: in re James Eki Mopio, ante. For it would
    constitute a denial of natural justice for a leader to be called upon or
    expected to answer an allegation which does not form part of the charges
    ‘preferred’ against him”.

    A Leadership Tribunal convened under the provisions of s.27 of the
    Leadership Code is in the nature of an ad hoc executive or administrative
    inquiry.

    • Although it has the widest of powers of inquiry particularly in relation to
    the reception of evidence, it is nevertheless limited, as we have already
    observed by the requirement to observe the rules of natural justice.
    • It is however, not an open-ended inquiry, or one which has a boundless
    jurisdiction. There are other limitations to its jurisdiction. For example, it
    is submitted that the jurisdiction of a Leadership Tribunal is strictly
    limited by the terms of reference contained in the referral made to it by the
    Public Prosecutor.

  • Page 16 of 34

  • • As a statutory creature of the leadership Code, Leadership Tribunal has no
    ‘common law’ or ‘inherent’ jurisdiction or indeed any “reserve powers”.
    • In the present case the Tribunal’s jurisdiction was determined in part by
    the terms of the reference contained in the Referral made to it by the
    Public Prosecutor dated 31 October 2004.
    • The Plaintiff therefore submits that the Tribunal had no jurisdiction to
    amend alter or re-draw the charges or the Referral. The applicant
    submitted that he tribunal in amending allegations 4,5 and 7 thus acted in
    excess of its jurisdiction and ultra vires to inquire into the matter referred
    to it.

    Ground 7

    The Leadership Tribunal unfairly and in breach of the rules of natural
    justice allowed evidence i.e. ‘Exhibit N7’ to be tendered late during the
    hearing when such evidence was never disclosed to the Plaintiff at anytime
    before the Tribunal conducted its hearing.

    • The Plaintiff submits that the Leadership Tribunal unfairly and in breach
    of the rules of natural justice allowed evidence i.e. ‘Exhibit n.7’ to be
    tendered late during the hearing when such evidence was never disclosed
    to the Plaintiff at anytime before the Tribunal conducted its hearing.

    Ground 8

    The leadership Tribunal acted unfairly and in breach of the rules of natural
    justice because the time allowed to the Leader to prepare his defence was
    insufficient causing prejudice to the Leader.

    • The plaintiff submits that the Leadership Tribunal acted unfairly and in
    breach of the rules of natural justice because the time allowed to the
    Plaintiff to prepare his defence was insufficient causing prejudice to the
    Plaintiff.
    • This ground relates to the charges that were amended by the Tribunal
    under objection from the plaintiff that the amended charge constituted a
    substituted charge. It has not been through the referral process and there
    was no adjournment or time permitted for the Plaintiff to consider his
    defence.

    Ground 9

    There appeared to be a real appearance of bias and error of law on the part
    of the Leadership Tribunal by it holding that the weight to be given to the
    Leader’s evidence should be discounted because of the order of the
    evidence given in the Leader’s defence.

  • Page 17 of 34

  • • The Applicant submitted that there appeared to be a real appearance of
    bias and error of law on the part of Leadership Tribunal by it holding that
    the weight to be given to the Plaintiff’s evidence should be discounted
    because of the order of the evidence given in the Leader’s defence.
    • The Tribunal’s reasons for discounting the Plaintiff’s evidence are
    contained at p.10 of the Decision of Schedule 4.5.
    • Section 27(4) of the Organic Law On Duties and Responsibilities of
    Leadership which provides that inquiry may be made without recourse to
    legal formalities does not overthrow the basic principles of natural justice
    and the right to be heard.
    • There are two aspects of this argument. Firstly the Tribunal is not obliged
    and more importantly is not entitled without proper notice to impose any
    order of giving of evidence. The Tribunal in this instance did not give any
    such order.
    • Secondly the Plaintiff was not obliged to give evidence or follow any
    particular order of giving evidence.
    • The English decision in BRISCOE V BRISCOE (1967) PD 501,
    established the principle that it is a breach of procedural fairness for a
    tribunal to refuse to allow a party to call his witnesses in the order that he
    thinks best, if there is a real possibility of prejudice to the effective
    presentation of the case. See also BARNES V B.P.C (Business forms) Ltd
    (1975) 1 All ER 237.
    • It was submitted that this constituted a fundamental breach of the right to
    be heard s.37(4)(f) of the constitution provides the right to give evidence
    and call witnesses – the same manner as the prosecution.
    • It was submitted that the prejudice to the Plaintiff was plain. The whole of
    his evidence was discounted because of the order of his witnesses, not his
    demeanour or the substance of his evidence. His credibility was destroyed
    in the eyes of the tribunal because of the order he called his witnesses.
    • It was submitted that such a finding was tantamount to prejudicing the
    Plaintiff unheard. At the very least, rather than proceeding from a
    presumption of innocence till full examination of the evidence was made,
    he was from the moment of the commencement of his defence viewed
    with suspicion. This is apparent in the Tribunal’s decision at p.10 and
    Schedule 4.5
    • Under such circumstances the applicant submitted that the Tribunal
    conduct of the inquiry was flawed and in breach of natural justice.

    Ground 10

    The Leadership Tribunal erred in law when determining penalty by failing
    to give sufficient or proper weight to its own finding that the leader never
    intentionally applied public money to purposes to which it could not
    lawfully be applied.

  • Page 18 of 34

  • • The Applicant submitted that the Tribunal erred in law when in
    recommending the penalty to be imposed against the Plaintiff it did not
    give sufficient weight to its own findings at pp.21 and 49 of its decision,
    that the Plaintiff never intentionally applied public money to purposes to
    which it could not lawfully be applied.
    • He further submitted that at p.21 of its decision, the Tribunal acquitted the
    Plaintiff of allegations 2 which charged the Plaintiff of having
    intentionally applied the same funds under allegations 1 and 2 which were
    public monies to any unlawful purpose.
    • At p.49 of its decision the Tribunal acquitted the Plaintiff of allegation 7
    which charged the Plaintiff of having intentionally applied the same funds
    under allegations 4 and 5 which were public monies to any unlawful
    purpose.
    • These findings were not considered nor given proper weight or
    consideration when the Tribunal recommended the penalty of dismissal
    from office against the Plaintiff.

    Ground 11

    The Leadership Tribunal erred in law in determining the penalty against
    the leader when it did not give sufficient and proper weight to the conduct
    of the Finance Department, the Office of Rural Development and Mr
    Anderson Agiru, as extenuating circumstances.

    • The Applicant submitted that the Tribunal erred in law in determining the
    penalty against the Plaintiff when it did not give sufficient and proper
    weight to its own findings on the conduct of:
    • Anderson Agiru at pp.13 to 15 of its Recommendations on Penalty in
    respect of allegations 1 and 2; and
    • The Finance Department and office of Rural Development at p.18 in
    relation allegations 4 and 5,
    • Of its Recommendations on Penalty.
    • In relation to Mr Agiru, the most important fact that went towards
    supporting allegations 1 and 2 was the fact that Mr Agiru had created a
    trust account styled “SHP Regional Members Trust Account Hon.
    Anderson Agiru” (the SHP Trust Account), which was outside the
    authority and approval of s.15 of the Public Finance (Management) Act
    1995.
    • The Tribunal had found the Plaintiff deposited funds from an illegal
    sources into his personal account. It did not find that the Plaintiff was
    aware of such illegality and there was no evidence offered on which it
    might be so. The Tribunal had found that there was no intention on the
    part of the Plaintiff in creating this illegal account, which had been created
    by Mr Agiru in November 1998.

  • Page 19 of 34

  • • Apart from finding that the Plaintiff did put the K50,000 into his personal
    account, it had not been found that he personally and directly benefited
    from these funds. In fact the Tribunal had acquitted the Plaintiff of
    intentionally applying the same funds to unlawful purposes at p.21 of its
    decision.
    • The Applicant therefore submitted that the Tribunal erred in law in not
    giving proper and sufficient weight to the conduct of Mr Agiru when it
    imposed the penalty of dismissal from office against the Plaintiff.
    • In relation to the conduct of the Finance Department and the Office of
    Rural Development, the Tribunal found that the Plaintiff received a total of
    five (5) cheques to the total amount of K600,000.00 from the Office of
    Rural Development for the discretionary component of the District
    Support Grant for 2001 and 2002. The Tribunal at para.5 of p.18 of its
    Recommendations on Penalty stated that “it was the Finance Department
    and the ORD that were responsible for those unlawful payments in the
    first place so that it can be said the payment into his (the Plaintiff’s)
    private account was intended by those two bodies”.
    • Thus it was submitted that the Tribunal erred in law in not giving proper
    and sufficient weight to the conduct of the Finance department and the
    office of Rural Development when it imposed the penalty of dismissal
    from office against the Plaintiff.

    The respondent made the following submissions

    For myself at the outset I find the charges or the allegations are rather lengthy. One has to
    try very hard to understand what the charges are. I have read the allegation and then go to
    Section 27(1) and Section 27 (5) of the constitution to make some sense out of the
    changes.

    Section 27 (1) reads:- my understanding and construction of s.27(1) is that each of the
    subclauses (a) (b), (c) and (d) create distinct and separate charges. This is because of the
    use of the word “or” at the end of subclauses (a) (b) and (c). For instance a leader who
    placed himself in a position in which he has or could have a conflict of interest or might
    be compromised when discharging his public or official duties should be charged for that
    offence on its own under s.27(5)(b) of the Constitution. What I am saying is that if a
    person is in breach of all, (a), (b), (c) and (d) of s.27(1) then 4 separate charge should be
    laid. If he is alleged to have breached subsection (1) (a) then the charge should be laid for
    breach of subsection (1)(a) only.

    I only make these remarks because the allegations or the charges in this case are lengthy
    and cumber some. I note however, that this is not one of the grounds for review although
    I note that it was raised during the course of the tribunal proceedings.

    I now turn to address the various grounds for review:

  • Page 20 of 34

  • Ground No 1:

    The leadership Tribunal erred in law in that it made findings of guilt in respect
    of Allegations 1, 2, 4 and 5 when there was no evidence before the Tribunal that
    the leader and his relatives, notwithstanding that he deposited the subject fund
    into his personal accounts, benefited directly from the use of such funds, such
    that the Tribunal could make those findings of guilt.

    There was no direct evidence that the leader and his relatives benefited directly from the
    use of the K50,000.00. That is clear from the evidence.

    The Tribunal however received evidence that the leader had received K50,000 of public
    money. The Tribunal considered this evidence as not disputed. It was not disputed that the
    K50,000 was deposited in to the leaders private cheque account No 11129046 held at the
    ANZ Bank, Port Moresby Branch on 31 July 2000. At that time, the account had a credit
    balance of K503.62. Various withdrawals, payments, cash cheques with drawls, ATM
    withdrawals and Electronic Funds Transfers at Point of Sale (EFTPOS) were made. The
    closing balance from total credits and debits during the period 31 July 2000 to 21 august
    2000 was K930.00. This meant that within 3 weeks of the deposit of the K50,000 into the
    leaders account the money was gone. The question then was how was the money
    expended? The leader is said to have acquitted to Anderson Agiru how the money was
    spent.

    An acquittal from was produced in evidence. The tribunal did not believe the evidence. In
    dealing with the issue of how the money was spent and who might have spent it the
    Tribunal said:-

    “Having considered that the payment to Mr Nali of the K50,000 was illegal he
    had improperly converted that money by depositing it into his private account.
    That is a personal account with which he conducts his private bank transaction
    and over which he retains the sole signatory, authority and control In our view it
    is open on the evidence and from the manner in which the public fund was used
    with speed, to infer a fraudulent intention on the part of the leader in receiving
    the cheque and banking the proceeds into his private bank account”.

    While there was a no direct evidence of the leader applying the money for his personal
    use or the use of his relatives the Tribunal inferred that he did. Was the Tribunal entitled
    to draw inferences of the leader, using the money for his personal use or for the use of his
    relatives? The fact that the money was deposited into his personal bank account and that
    he was the sole signatory to the account and that the monies were withdrawn and
    depleted quite speedily were reasons enough for the tribunal to draw inferences against
    the leader. Moreover a copy of the acquittal form to Anderson Agiru was treated as being
    fabricated recently. For the Tribunal to have come to that, finding is a matter that was
    within the ambit of its powers and discretions to either accept it or reject it. It was open to
    the Tribunal.

  • Page 21 of 34

  • Likewise I am of the view that it was open on the evidence that was before it for the
    Tribunal to draw the inferences it did. I would therefore not tamper with the Tribunals
    findings and I would dismiss this ground in so far as it relates to Allegations 1, 2, 4 and 5.

    Ground 2:

    “There appeared to be a real suspicion of bias and impartiality when the
    Leadership Tribunal held that the leader had the onus to explain and had not
    explained how and why he received funds under allegations 1 and 2 when he
    did explain such in his evidence.”

    I have on file the decision of the Tribunal which is annexed to the Affidavit of Michael
    Nali sworn and filed on 3 August 2004 which is document number 2 on the file.

    The applicant had submitted that there appeared to be an appearance of bias and partiality
    when the tribunal at page 15 paragraph 3 of its decision held that the plaintiff had the
    onus to explain and had not explained how and why he received funds under allegations 1
    and 2 when at page 14 of the same decision the plaintiff explains such in his evidence.

    I note however that the Tribunal on page 18 paragraph 1 of the decision said:

    “We do not believe that Mr Agiru had simply paid the leader without any
    prompting on the leaders part. He has to explain why he was paid that money
    from the public purse and why he used his private account to keep and use it at
    his will”.

    In that passage, the Tribunal said it did not believe that Mr Agiru had paid the K50,000
    without the leader asking or requesting it. In other words the Tribunal is saying the leader
    could or may have asked or requested the money from Mr Agiru. The evidence is that the
    leader did not know why the K50,000.00 cheque was paid by Mr. Agiru under the name
    of the leader.

    The leader had assumed that the K50,000.00 had come from Mr Agiru’s discretion fund.
    If it had come from Mr Agiru’s discretion fund the cheque should have been written out
    to the District Support Grant Fund and not to the Leader. Here the cheque was written out
    to the leader in person although he said he did not.

    The Tribunal obviously did not accept the leader’s version of why and how the money
    came in the cheque being written out in the name of the leader and deposited in his
    private account. That therefore is not a matter this court can review. It was in the
    Tribunal’s power to either accept or reject the leader’s evidence at the hearing.

    In that regard I reject this ground of review.

  • Page 22 of 34

  • The Tribunal was of the view that if the cheque was written out in the leaders name and
    deposited into the leaders personal account, the leader must have asked or requested Mr
    Agiru for the money. That inference may have been from the overall evidence before the
    tribunal.

    Ground 3

    The leadership Tribunal after finding that the leader may not have personally
    benefited from the funds under allegation 1 and 2, unreasonably and
    irrationally held that the leader did use the funds for his own benefit after he
    improperly and illegally received it in the first place”.

    The tribunal said:

    “In this count, the leader is alleged to have applied a significant part of the
    K50,000.00 public money to his personal use. This allegation is without direct
    evidence. However it is clear from the evidence that leader made numerous
    drawings from his personal account No 11129046 after he had deposited
    K50,000.00 into the account………..”

    The tribunal considers that, the leader in depositing the K50,000 into his
    personal account, he is treating it as his own and had thereby converted the
    money into his personal property. He had unrestricted access to that account
    and transacted on at his own time and would distribute it at his own choosing.
    He may not have personally benefited from the public money but the inference
    is overwhelming that the money were used for his own benefit having
    improperly and illegally received it in the first place”.(underlining mine)

    It is the underlined part of the judgement that is being complained of. Various
    interpretations can be made of that statement. One is entitled to interpret the passage the
    way it suits him. Various interpretations are open.. There is no direct evidence the leader
    benefited from the public money but the inference that he did personally benefit from the
    money is overwhelming taking into account that he improperly and illegally received it in
    the first place. Only the Tribunal can say with any certainty as to what it meant when it
    said that. I do not think the Tribunal in that statement made a definitive finding that the
    leader did not benefit personally from the public money. The use of the words “but the
    inference is overwhelming” lends support to the proposition that there was no definitive
    finding that the leader did not personally benefit from the money. I think it was rather a
    choice of words that the applicant is trying to play around with here.

    Is there any process to review in this instance in so far as this allegation is concerned. The
    tribunal had found earlier that Mr Agiru was illegally maintaining a Trust Account which
    was against the Public Finance Management Act and therefore any funds coming out of
    that fund was illegal. Whether the applicant knew that fact did not matter or made no
    difference.

  • Page 23 of 34

  • In the circumstances I dismiss this ground.

    Ground 4:

    The Leadership Tribunal unreasonably and irrationally made findings that the
    leader had recently invented “Exhibit W” when there was no factual or legal
    basis for such a finding.

    The applicant submitted that the tribunal unreasonably and irrationally made findings that
    the plaintiff had recently invented “Exhibit W” when there was no failure to cross
    examine and no inconsistence in the applicant’s evidence.

    This is what the Tribunal said in relation to the ground of review raised by the applicant.

    “The seventh allegation in Count 1 relates to the leaders failure to acquit the
    K50,000.00. The allegation is that Mr Nali failed to properly acquit that public
    money. The evidence is that the leader did acquit K50,000.00. However, the
    question of proper acquittal arises directly from the evidence.

    The leader had testified that he had acquitted the K50,000.00 to Mr Agiru and
    copied the acquittals to the ORD. That was the first time the tribunal was made
    aware of the existence of any disbursement or acquittal concerning the
    K50,000.00 of public fund. The only reference up to that point in time was the
    statement in the affidavit of Kanuaba Kizana that he had made a thorough
    search of the records of the ORD but could find no trace of the disbursement
    and acquittal for the K50,000.00

    Mr Kizana was later called to verify the reimbursement of K150,00.00 by the
    leader to the State. That was also the opportunity for the leader to cross-
    examine the witness on his affidavit statement. However, Mr Kizana was no
    tasked one question about his statement. Even so, the crucial omission was the
    leader’s failure to then produce to the witness, copies of his disbursement and
    acquittal forms which he has now produced and marked as Exhibit ‘W’. He
    also had an earlier opportunity to disclose those documents to the Ombudsman
    Commission or the Public Prosecutor and if he did, that would have been
    consistent with what he now claims. The only person who could verify Mr Nali’s
    assertions in Mr Anderson Agiru. There is no evidence from Mr Agiru before
    us.

    The Tribunal suspects that Exhibit ‘W’ is a recent invention and that the
    documents had been manufactured in the course of these proceedings. We find
    support for that view from a number of factors.

    (i) the failure to cross examine the Prosecution witnesses on the acquittal

  • Page 24 of 34

  • by the leader. There were a number of witnesses from the ORD who gave
    evidence and the leader’s version should have been put to anyone of
    them. Putting the version one relies on in cross-examination of the
    witnesses goes to the issue of consistency and reliability when
    conflicting evidence are weighed up at the end of all the evidence.
    (ii) The manner in which the disbursements and acquittal documents were
    introduced into evidence appeared calculated other than expected
    because of its belated introduction into evidence and only after it became
    obvious that there was no record found in the ORD filing system for
    those documents;
    (iii) The leader’s own evidence that he signed the disbursement and acquittal
    forms on the same day of withdrawal and payment of the money to the
    recipient in contradicted by his omission to file disbursement and
    acquittal for Patricia Urum. We do not accept his explanation that it was
    a simple omission.
    (iv) The documents in Exhibit W consisted of selective additions of cheques
    payments.

    We do not believe the leader and find that he had not acquitted the funds as
    alleged “.

    The tribunal suspected that Exhibit W was a recent invention. The tribunal gave its
    reasons why it suspected Exhibition W as a recent invention.

    The reasons the tribunal gave to suspecting the Exhibit W as a recent invention in my
    view were reasonable and logical. The tribunal was in a better position to make those
    findings than I find myself in. Moreover in my view it was open to the tribunal to make
    those findings. In the end the tribunal said in no uncertain terms “We do not believe the
    leader and find that he had not acquitted the funds as alleged” I find nothing wrong
    with that statement. Accordingly I dismiss this ground of review.

    Ground 5:

    The leadership tribunal unreasonably and irrationally made funding that the
    leader’s failure to create a Trust account in relation to allegations 4 and 5 was
    improper when the creation of such a trust account by a leader was contrary to
    and in breach of section 15 of the Public Finance (Management) Act.

    The applicant submitted that the tribunal unreasonably and irrationally made findings that
    the plaintiff’s failure to create trust accounts in relation to allegations 4 and 5 was
    improper when it also made findings that the creation of such a trust account was in fact
    prohibited and therefore illegal that is it was contrary to section 15 of the Public Finance
    (Management) Act.

    This is what the Tribunal noted and stated on page 16 of the decision:

  • Page 25 of 34

  • Source of Funding of K50,000.00 for Mr Anderson Agiru

    The affidavit of Mr Simon Frazer, Auditor and Liquidator of Pricewaterhouse
    Coopers, Chattered Accountants, states that the SHP Trust Account held funds
    deposited from various sources including the Southern Highlands Provincial
    Government, Electoral Development Program funds and funds from the
    Petroleum Resources (Kutubu) Ltd. Mr Frazer states and we agree with his
    conclusion that the Trust Account held funds beneficially owned by the
    Southern Highlands Provincial government, albeit, the State. The Trust
    Account held public money. The payment of K50,000.00 to Mr Nali was
    therefore made from public funds.

    There is nothing before us verifying the legal basis and purpose of the SHP
    Trust Account. However, it might be inferred from the Audit Report the trust
    fund was set up by the former Governor of Southern Highlands province, Mr
    Anderson Agiru to transfer funds out of the Southern Highlands Provincial
    Government allocation and away from the Provincial Treasury and
    bureaucratic process into an account where he would retain the sole
    management, control and discretion over its use. Between November 1988 and
    April 2002 the SHP Trust Account held K2,346,000.00

    Mr Agiru may have had good intentions in dealing with public money in that
    manner. However we could find no legal basis for that Trust Account. S.15 of
    the Public Finance (Management) Act, authorizes the Minister for Finance to
    approve the establishment of Trust Funds. Any trust fund operated outside the
    approval is deemed illegal under the Act. The list of public Trust Accounts
    established by the Minister does not include the SHP Trust Account (Exhibit
    ‘R’). We conclude that the SHP Trust Account was an illegal Trust Account. It
    follows that any payment out of that fund to any individual including Mr Nali
    would be illegal payment.”

    My understanding of what the Tribunal said is this. The tribunal found that K50,000.00
    paid to the leader came from a Trust Fund which was not approved by the Minister for
    Finance. That Trust Fund was operated by Mr Anderson Agiru. Mr Agiru had no approval
    from the Minister to maintain that Trust Fund. That Trust Fund was therefore being
    operated contrary to s.15 of the Public Finance (Management) Act by Mr Agiru. It was
    therefore an illegal Trust Fund.

    The tribunal found that the K50,000.00 which was public money was deposited into the
    leaders private bank account.

    The tribunal was making the point that for the leaders to be doing things properly Mr
    Agiru ought to have obtained approval from the Minister for Finance to operate the
    Southern Highlands Province Government Trust Account in compliance with s.15 of the

  • Page 26 of 34

  • Public Finance (Management) Act and Mr Nali in this case should have established a
    Trust Fund and sought approval from the Minister for Finance to operate a Trust Fund
    that all public monies would have been put in such a Trust Account. That to my mind is
    the point being made by the Tribunal. There is nothing to review in this ground.

    In that regard I would dismiss this ground of review.

    Ground 6:

    The Leadership Tribunal acted ultra vires when it allowed and made
    amendments to allegations 4 and 5 of the charges against the leader. That is,
    that, the words “District Development program” were amended and replaced
    with the words “District Support Grant”” and the figures K610,000.00 was
    amended and replaced with the figure K460,000.00 in allegations 4 and 5.
    Thereby redrawing the charges to the to the prejudice of the plaintiff and in
    excess of its powers contained in Section 28(1)(1)of The Constitution and s.
    27(4) of the ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF
    LEADERSHIP “.

    I remind myself of the law in relation to Judicial Review application. As held by the
    Supreme Court in the case of KEKEDO v BURNS PHILIP (1988-89) PNGLR 122. 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.

    I have had the benefit of reading schedule 4.1 Ruling on the Power of the Tribunal to
    Amend Referral.

    The question was did the tribunal have jurisdiction to amend the charges. The tribunal in
    this case thought they did and gave their reasons for saying that they had the power to
    amend the charges. They referred to case authorities decided previously to support their
    position. They also referred to the relevant laws and justified their reasons for holding
    that the tribunal had jurisdiction to amend the charges. Taking into account the law
    relating to judicial review applications the next question is, Is there anything untoward
    against the tribunal in its decision making process. Is there anything wrong done by the
    tribunal in its decision making process to say it had jurisdiction to amend the charges. At
    this juncture there is no definitive decision on the issue by the Supreme Court. The
    decisions that have been referred to me are National Court decisions. One National Court
    decision appears to suggest the Tribunal has no discretion or power on its own to amend
    the charges while another appears to be saying it has the power to amend if any
    application is made to it to amend the charges. The tribunal in this case has given its
    reasons for saying that the tribunal has power to amend the charges. In my view it is
    arguable and therefore was open to the tribunal to make that finding. Until such time the
    Supreme Court makes a definitive ruling on this matter I find that it was open to the
    Tribunal to make or come to that finding.

  • Page 27 of 34

  • In the circumstances I dismiss this ground of review.

    Ground 7

    The ground was abandoned at the hearing.

    Ground 8:

    “The Leadership Tribunal acted unfairly and in breach of the rules of natural
    justice because the time allowed to the leader to prepare his defence was
    insufficient causing prejudice to the leader”.

    This ground arose as a result of the amendment made by the Tribunal. The applicant
    submitted that once the amendments were made by the Tribunal under objection, it acted
    unfairly and in breach of the rules of natural justice in that, the time allowed to the
    applicant to prepare his defence was insufficient thereby causing prejudice to the
    applicant. He further submitted that once the amendments were made, the amended
    charge constituted a substituted charge which had not gone through the referral process.
    He further argued that no time was permitted or allowed for him to consider his defence
    after the amendments were made.

    From my reading of this ground I take it that some time was given or allowed to the
    leader to prepare his defence on the amended charges. The first amendment was in
    relation to allegation number 4. the words “District Development Program” were
    substituted with the words “District Support Grants”. The second amendment was in
    relation to allegation number 5. The figure in that allegation of “K610,000.00″ was
    substituted with the new figure of K460,000.00”

    I do not have the transcripts to inform me how much time, if any, was given to the
    applicant to defend these new amendments. The Tribunal in this case adopted and
    followed the reasoning of the Leadership Tribunal in JERRY SINGIROK V HON.
    JUSTICE JALINA, BIDAR AND SAGU N2068 when allowing an amendment. Sheehan
    J in that case said:-

    “While failure to cite the appropriate sub subparagraph of s.12 can be said to be
    an error of law on the face of the record, the discovery of error is not a self
    executing invalidation of the Tribunal finding. In Judicial Review the
    determination of the appropriate relief, if any, remains in the discretion of the
    Court. In this case I am satisfied that such error is quite insufficient to have any
    finding of the Tribunal set aside, because it is not an error in any way affecting
    the substance of the decision.

    The misquotation of the enumeration of the appropriate sub subparagraph of s.12
    detailed and set out in the charge and in the Tribunals decision, was, I am

  • Page 28 of 34

  • satisfied an insignificant error. The charge itself clearly states and shows the
    intent of the charge, one clearly understood and addressed by the Tribunal.
    Equally clearly, there was no misapprehension of the nature and content of the
    charge on the part of the applicant. Submissions of counsel for the Applicant to
    the Tribunal state that,

    “It is the leaders submission that his allegation is similar to allegation one
    (1) already dealt with above. The only difference between this and the first
    allegation is that the gift or benefit accepted must be without a exception
    from the liability of the Ombudsman Commission. In other words the
    Ombudsman Commission must be made aware by the letters of the benefit
    to be exempted.

    As to what evidence is available before this Tribunal gives me a respect of
    this allegation, is our submission that much of that which needs to be
    submitted here is already covered in allegation one (1) above. That is, the
    leader has made admissions that he received the benefit (money) from Mr
    Franklin. We therefore a request the Tribunal to consider the leaders
    submission in respect of evidence by taking that which have been
    submitted in allegation one (1) above.”

    That submission follows and uses the term of s.12(1)(c). It was in essence, as
    referred to earlier, that the benefits received by the applicant were unsolicited
    gifts. That submission of course was no denial or counter to the allegation. And of
    course gifts not exempted are in any case prescribed by the same subsection 12(1)
    (c). The Applicants acknowledgement of the receipt and use of such benefits (or
    gifts) made the finding of misconduct that the Tribunal arrived at, inevitable.

    Nor could it be said that the error of enumeration in allegation two (2) has
    prejudiced the applicant in any way or caused him any injustice. Such could only
    be said to have occurred if the error precluded him from raising some valid
    defence that would lead as of right to a finding that he was not guilty of the
    charge. The allegation, which was correctly understood by the applicant, counsel
    and the Tribunal alike does not support such a claim. I am satisfied that had the
    error as to the proper subsection been adverted to at any time during the Tribunal
    Inquiry there would have been ready acknowledgement by all parties, that the
    correct citation was Section 12(1)(c) and the appropriate amendment made.”

    In this case the tribunal said:

    The proposed amendment seeks to replace a broad descriptive funding source,
    were a specific category of funding from which the leader was alleged to have
    misapplied funds. The referral alleged misconduct arose from the use of funds
    from the District Development Programme Grant (DDPG). Evidence so far has
    established that the DDPG comprised the Provincial Support Grant, (PSG),

  • Page 29 of 34

  • District Support Grant (DSG) and the social and Rural Development Grant
    (S&RDG). Whilst the PSG and DSG are constitutional grants, the S&RDG was a
    creature of the NEC Determination. These three different schemes of grants are
    administered under different legal or administrative guidelines but are all from
    within the umbrella of the DDPG and ultimately from within the umbrella of the
    all embracing basket of public money intended for the development of Mendi
    Open Electorate in respect of the years 2001 and 2002.

    The charge in count 4 relates in substance to calling into question, the integrity of
    the office of the leader held. Count 7 relates to misapplication of those public
    moneys that came into the leaders possession, control and management by virtue
    of his elective office. The evidence has specifically established that the moneys the
    leader was alleged to have misused is from the DSG. Documents which are and
    were earlier served on the leader specifically identified the DSG as the source
    funds from which the allegations of misconduct arose. The explanatory notes from
    the Public Prosecutor accompanying the referral to the Tribunal clearly state the
    allegations relate to the use of the DSG. The amendment sought is to specify the
    source of fund from within a general funding scheme established by the
    Government.

    The amendment does not in any way affect the substance of the charges counts 4
    and 7. In effect it comes within the ambit of and clarifies the matter referred by
    specifying the source of funding which was already well within the leader’s own
    knowledge,. The amendment does not alter or change the charges in any
    substantial way so as to amount to altering, re-drawal or recasting of the charges
    to allege something new or different. The charge itself shows the intention of the
    charges as clearly understood by the leader, Counsel and the Tribunal from the
    evidence.

    Furthermore, there should clearly be no misapprehension of the nature and
    content of the charge as amended on the part of the leader. The amendment would
    cause the leader prejudice or injustice if it precluded him from raising some
    defence that would lead as his right to a finding that he was not guilty of the
    charge. Fairness also demands that the leader knew his rights in advance, that he
    had proper notice of the allegations he has to answer and that he had adequate
    opportunity to put his own case in person or through counsel. The effect of the
    amendment and the substance of the allegations when correctly appreciated and
    understood by the leader, counsel and the Tribunal are in the Tribunal’s view such
    that, it would not support any claim of prejudice, injustice or unfairness.”

    The views as expressed and quoted above in my view were open. There is nothing in the
    decision specifically by the Tribunal in relation to the amendment of figure K610,000.00
    to K460,000.00.

    I however note that the Tribunal did say:-

  • Page 30 of 34

  • “The tribunal adopts and follows His Honour’s reasoning in dealing with the
    issue of amendments to Counts 4 and 7 in the case before us ……..

    The amendment does not in any way effect the substance of the charges in counts
    4 and 7. In effect it comes within the ambit of and clarifies the matter referred by
    specifying the source of funding which was already well within the leaders own
    knowledge. The amendments does not alter or change the charges in any
    substantial way so as to amount to altering re-drawl or recasting of the charges to
    allege something new or different. The charge itself shows the intention of the
    charges as are clearly understood by the leader, counsel and the Tribunal from the
    evidence thus far”.

    It can be taken from the quotation above that the tribunal was of the opinion that the
    amendments did not alter or change the charge in any substantial way so as to amount to
    altering, redrawing or recasting of the charges to allege something new or different. Was
    that finding open to the tribunal? I am of the opinion that such a finding was open to the
    Tribunal. One might have a different opinion which one would be entitled to but the law
    on judicial review has been stated to mean that ones opinion does not matter, it is how the
    Tribunal came to that conclusion. The tribunal has given its reasons why and how it
    arrived at its decision. I am satisfied that it was open for the tribunal to come to that
    finding.

    After the tribunal had come to make that finding how much time was given to the
    applicant to defend the charges on the amendments. While the applicant has alleged that
    not enough time was given to him he does not say how much time was indeed given to
    him. Did he request for a particular time period of adjournment which was unreasonably
    refused? How much time did the applicant require after amendments were made for him
    to prepare himself on the amended changes. How much time was he given? The applicant
    in his submission said that “there was no adjournment or time permitted for the plaintiff
    to consider his defence”. That submission does not correspond with the allegation itself
    which said that “…. the time allowed to the leader to prepare his defence was
    insufficient….. The allegation suggested some time was given but not adequate. The
    submission says no time was given or permitted to consider his defence.

    Without the benefit of the transcript of the proceedings I do not know if any time was
    given or if any time was given, how much of it was given. In the circumstances I dismiss
    this ground.

    Ground 9:

    There appeared to be a real appearance of bias and error of law on the part of
    the Leadership Tribunal by it holding that the weight to be given to the leaders
    evidence should be discounted because of the order of the evidence given in the
    leaders defence.

  • Page 31 of 34

  • The tribunal on page 10 of the decision said:-

    In our view, that course was inappropriate. It invites suspicions that the presence
    of the leader during the testimony of his witnesses was to assist, encourage or
    prompt them in their story. It may even be intended to intimidate the witnesses. We
    consider it highly probable for the reasons set out below that the leader’s choice
    to hear out his witnesses first was a deliberate and calculated act to ensure
    consistency in a defence that appear to be most recent.

    First, the line of defence the witnesses were called to support was not raised
    initially during cross-examination of the prosecution witnesses until it became
    obvious that the leader had to explain aspects of the evidence that tend show
    misappropriate of funds. Second, during the testimony of the witnesses, we
    observed brief moments of hesitancy and eye contacts between some of the
    witnesses and the leader and others we assumed to be supporters of the leader in
    the public gallery. It was apparent that some of the witnesses were being
    “assisted” in their evidence. And thirdly, having heard the testimony of his
    witnesses, the chances are that the leader would tailor his own testimony to
    harmonize or improve his witnesses’ version. There were traits of that when the
    leader was in the witness box.

    We considered that the leader was entitled to adduce evidence in the order he
    preferred but his election to hear his witness first before he gave evidence is
    inherently inappropriate”.

    In schedule 4:5 of the Ruling on the subject matter the tribunal said:

    “At the end of the evidence by the Public Prosecutor, the leader through counsel
    elected to give evidence after he had called his witnesses. He also preferred to
    hear any witness the Tribunal intended to call before he responded. The Tribunal
    queried with counsel, the propriety of such course but made no particular ruling.
    We consider that the leader is entitled to his choice in the order of representing
    his case before this Tribunal and left that to his election.

    However, the critical part of that choice was the leader’s presence during the
    testimony of his witnesses. The leader is ably represented and no doubt well
    informed on the dangers of his expressed election to first hear his witnesses
    before he testified.

    In our view, that course was appropriate. It invites suspicions that the presence of
    the leader during the testimony of his witnesses was to assist, encourage or
    prompt them in their story. It may even be intended to intimidate the witnesses. We
    consider it highly probable for the reasons we set out below that the leader’s
    choice to hear out his witnesses first was a deliberate and calculated act to ensure

  • Page 32 of 34

  • consistency in a defence that appear to be most recent”.

    The applicant submitted that there appeared to be real appearance of bias and error of law
    on the part of the Leadership Tribunal because of the order the leader defence called his
    evidence.

    The tribunal on page 10 of the decision said:-

    We considered that the leader was entitled to adduce evidence in the order he
    preferred but his election to hear his witness first before he gave evidence is
    inherently inappropriate”.

    In schedule 4:5 of the Ruling on the subject matter the tribunal said:

    “At the end of the evidence by the Public Prosecutor, the leader through counsel
    elected to give evidence after he had called his witnesses. He also preferred to
    hear any witness the Tribunal intended to call before he responded. The Tribunal
    queried with counsel, the propriety of such course but made no particular ruling.
    We consider that the leader is entitled to his choice in the order of presenting his
    case before this Tribunal and left that to his election.

    However, the critical part of that choice was the leader’s presence during the
    testimony of his witnesses. The leader is ably represented and no doubt well
    informed on the dangers of his expressed election to first hear his witnesses
    before he testified.

    In our view, that course was appropriate. It invites suspicions that the presence of
    the leader during the testimony of his witnesses was to assist, encourage or
    prompt them in their story. It may even be intended to intimidate the witnesses. We
    consider it highly probable for the reasons we set out below that the leader’s
    choice to hear out his witnesses first was a deliberate and calculated act to ensure
    consistency in a defence that appear to be most recent”.

    The applicant submitted that there appeared to be real appearance of bias and error of law
    on the part of the Leadership Tribunal by it holding that the weight to be given to the
    plaintiffs evidence should be discounted because of the order the leaders defence called
    his evidence.

    The applicant through his lawyers cited two common law cases of BRISCOE V
    BRISCOE (1968) PD 501 and BARNES V BPC (BUSINESS FORMS) LTD (1975) 1
    ALL ER 237.
    The applicant further submitted that the prejudice he suffered is that the whole of his
    evidence was discounted because of the order he called his witness and not because of his
    demeanour as a witness or the substance of his evidence.

  • Page 33 of 34

  • He submitted that the credibility of his evidence was destroyed in the eyes of the tribunal
    because of the order in which he called his witnesses. He submitted that such a finding by
    the tribunal amounted to prejudicing the applicant unheard. He submitted that rather than
    proceeding on the basis that he was presumed innocent until proven guilty. It appeared he
    was already guilty The applicant also submitted that the tribunal ought to have given
    proper direction or the order of giving evidence when it had the opportunity to do so. He
    argued that in this case the tribunal did not make any such order. He further submitted
    that the plaintiff was not obliged to give evidence or follow any particular order to give
    evidence.

    I note that in this case the applicant called evidence from other witnesses first and he
    himself gave evidence last. He was heard on his defence. His right to be heard was given.
    There was no breach of natural justice, nor was there any breach of the Constitution s.
    37(4)(1) The tribunal did not direct him to give his evidence first before the other
    witnesses. He had the benefit of a senior lawyer and went on to give his evidence last.
    While the Tribunal raised its concern on the course taken by the applicant, it did not make
    any direction or give any order.

    After the tribunal allowed him to proceed as he liked, it criticized him later in Sheehan
    4.5. I do not know if Schedule 4.5 is part of the main decision. The tribunal said:

    “In our view that course was inappropriate. It invites suspicions that the presence
    of the leader during the testimony of his witnesses was to assist, encourage or
    prompt them in their story. It may even be intended to intimidate the witnesses. We
    consider it highly probable for the reasons we set out below that the leaders
    choice to hear out his witnesses first was a deliberate and calculated act to ensure
    consistency in a defence that appear to be most recent.

    If the tribunal thought the calling of other witnesses first and the leader last was
    inappropriate it ought to have made a ruling on that point and gave directions or orders
    when the tribunal queried it right at the outset instead of allowing him to proceed. It was
    inappropriate for the tribunal to make the statement in schedule 4.5. That in my respectful
    view was a fundamental flaw. That must affect the validity and integrity of the decision as
    it offended the applicants rights to a fair trial.

    On this point for the reason stated above I would uphold the application for review and
    quash the decision of the Tribunal and order that a new Tribunal be appointed to rehear
    the allegations.

    Grounds 10 and 11:

    These two grounds are against the penalty imposed by the Tribunal. Having now decided
    on Ground 9 to quash the decision, I do not think it is now necessary to discuss them as
    they only go to the penalty imposed.

  • Page 34 of 34

  • In conclusion I have considered what I should do with the matter, that is whether to send
    the matter back to the same tribunal to rehear the whole matter, or send it to another
    tribunal to rehear the matter again.

    After considering the circumstances I order that the matter be sent back to another
    tribunal to rehear the allegations.

    In so far as costs are concerned I award costs.
    __________________________________________