Hon Patrick Pruaitch v The Ombudsman Commission and others [2010] N7369

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    National Court dismissal of proceedings filed by MP Patrick Pruaitch seeking to avoid a Leadership Tribunal set up in February 2010 to hear allegations of misconduct against him. The proceedings were declared an abuse of process.

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  • N7369
    PAPUA NEW GUINEA
    [IN THE NATIONAL COURT OF JUSTICE]

    OS NO. 34 OF 2010

    BETWEEN:
    HON PATRICK PRUAITCH
    Plaintiff

    AND:
    CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI
    Comprising the Ombudsman Commission
    First Defendant

    AND:
    JIM WALA TAMATE, The Public Prosecutor
    Second Defendant

    AND:
    DEPUTY CHIEF JUSTICE GIBBS SLAIKA, SENIOR MAGISTRATES
    PETER TOLIKEN & NERIIE ELIAKIM
    Third Defendant

    AND:
    THE INDEPENDENT STATE OF PAPUA NEW GUINEA
    Fourth Defendant

    Waigani: Polume-Kiele J
    2018: 5 February & 19 June

    PRACTICE AND PROCEDURE- Application for dismissal of the entire
    proceedings for abuse of process – Order 12, Rule 40 (1) (a) (b) and (c) –
    National Court Rules, s 155(4) – Constitution – relevant considerations

    PRACTICE AND PROCEDURE – Application seeking orders – Order 4 Rule
    42 and Rule 15 (1) – National Court Rules – for referral to Supreme Court –
    s18 (2) – Constitution

    Cases Cited:

    Pruaitch vs. Manek [2017] SC 1593
    Pruaitch vs. Manek [2011] SC1052
    John Nilkare vs. The Ombudsman Commission of Papua New Guinea [1999]

  • Page 2 of 19

  • PNGLR 333
    Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava
    (1998) SC581
    Supreme Court Reference No 1 of 1978; Re Leo Robert Morgan [1978] PNGLR
    460
    Supreme Court Reference No. 5 of 1980 re: Joseph Auna [1980] PNGLR 500
    Wartoto vs. The State (2015) SC1411
    Andrew Nagari vs. Rural Development Bank (2007) N3295
    Somare vs. Manek (2011) SC 1118

    Counsels:

    Mr. Varitimos, for the Plaintiff/Applicant
    Ms Koralyo, for the First Respondent
    Mr L Kandi, for the Second & Fourth Respondents

    RULING

    19th June, 2018

    1. POLUME-KIELE J: Two motions were moved before me on the 5th of
    February 2018. The first motion by the first Respondent seeking to dismiss the
    entire proceedings for being frivolous or vexations and an abuse of the process
    of the Court under Order 12 Rule 40 (1) (a) (b) and (c) of the National Court
    Rules; Section 155 (4) of the Constitution and the Court’s inherent power. The
    second motion by the applicant seeking orders under Order 4 Rule 42 and Rule
    15(1) of the National Court Rules that the matter be referred to under s 18 (2) of
    the Constitution that the following Constitutional questions be referred to the
    Supreme Court for interpretation.

    2. I now hand down my ruling on the motions.

    Introduction

    3. The plaintiff/applicant filed these proceeding following the referral of the
    matter of an investigation of the plaintiff for misconduct in office by the first
    defendants to the second defendant (“the Referral’’) under section 20 (4) of the
    Organic Law on the Duties and Responsibilities of Leadership (“the
    Constitutional Law”) in which he seeks orders that:

    (i) the referral is unconstitutional, in excess of the jurisdiction of the first
    defendant and therefore illegal, invalid and of no force or effect, because
    the first defendants did not afford the plaintiff a right to be heard before
    making the Referral, in breach of their duty to do under section 20 (3) of
    the Constitutional Law;

  • Page 3 of 19

  • (ii) the referral is unconstitutional, in excess of the jurisdiction of the first
    Defendant and therefore illegal, invalid, and of no force or effect, because
    the first Defendants did not afford the Plaintiff a right to be heard before
    making the referral, in breach of their duty to do under section 2 (3) of the
    Constitutional Law; and
    (iii) That pursuant to section 23 (2), and 155 (4) of the Constitution, a
    permanent injunction prohibiting forthwith the defendants their officers,
    employees, servants, agents or whosoever, from taking any further actions
    or steps under the Constitutional Law or otherwise pursuant to the
    Referral.”

    Background

    4. The plaintiff/applicant in these proceedings claims that the Ombudsman
    Commission (First Respondent) did not afford him a right ( a further right) to
    be heard before making the Referral, a breach of their duty to do so under
    section 20 (3) of the Organic Law on Duties and Responsibilities of Leadership
    (OLDRL).

    5. Given this breach, the applicant says that he is entitled to seek a referral
    to the Supreme Court on the interpretation of the above terms.

    6. In order to fully appreciate the nature of the application and the flow of
    events that have occurred since the referral, a chronological chart is set out
    below showing the path that this case has travelled through to this application. I
    reproduce with some variation, the events that had ensued since the filing of
    these proceedings (adopted from the second respondent’s submission) a table
    charting the flow of processes that the plaintiff/applicant has pursued before the
    courts (both the National and Supreme Court) to protect his rights. I also note
    that whilst pursuing these avenues, the referral has been kept in abeyance for the
    last 7 years and 5 months.

    7. Table setting out in chronological order, proceedings filed in relation to
    these proceedings since the referral:

    Date of filing of Nature of Cause of Action Outcome of proceedings
    proceedings

  • Page 4 of 19

  • 20th August, A referral was made by the first Judicial Review application
    respondent to the Public Prosecutor
    2009 heard on the 2nd September
    regarding the allegations. 2009.
    Aggrieved by the referral, the
    applicant filed a judicial review On 8th of September 2009;
    proceedings in OS (JR) No. 345 of the National Court refused
    2009, (Order 16 of the National leave to review that decision
    Court Rules

    The ground for review was based on
    the proposition that the applicant had
    been denied the right to be heard on
    the matter.
    03rd February, 2010, a
    Tribunal (third respondent)
    was appointed by the
    Honourable Chief Justice, Sir
    Salamo Injia
    This Tribunal is yet to
    convene and determine the
    Referral.
    04th February, OS No. 34 of 2010: Pruaitch vs.
    Chronox Manek & Ors was filed
    2010
    s e e k i n g c e r t a i n d e c l a r a t o r y,
    preventive; injunctive and stay
    orders pursuant to ss. 23, 255 (4) and
    217 (b) of the Constitution.
    On 12th February, Two Notices of Motion, one filed by Kariko, J dismissed the
    the plaintiff and another by the proceedings, OS 34 of 2010
    2010
    Commission moved before his (Pruaitch vs. Manek [2010]
    Honour Kariko J. N4149) – multiplicity of
    proceedings and matter was
    res judicata. The issues raised
    were the same issues which
    had already been determined
    by Hartshorn, J in OS (JR)
    No. 345 of 2009. His Honour
    found that the proceedings
    before him were in effect
    judicial review proceedings
    because they were seeking a
    review of the decision made
    by the Commission to refer
    the leader to the Public
    Prosecutor which had been
    heard and determined. The
    proceedings before him were
    an abuse of process.

  • Page 5 of 19

  • 19th February SCA No. 7 of 2010: Pruaitch vs. The plaintiff sought and
    2010 Manek filed on 12th February 2010 obtained an exparte stay order
    before Sevua, J (sitting as a
    against the decision of Kariko, J
    single judge of the Supreme
    Court) on 19 th February,
    2010, thereby restraining the
    Leadership tribunal from
    convening its hearing.
    31st March 2010 The Supreme court comprising their The Supreme Court reserved
    Honours Kirriwom, Gavara-Nanu its decision.
    and Davani, JJ dealt with only two
    matters arising out of that appeal
    namely, leave to appeal on question
    of facts alone and the question of
    stay.
    31st May, 2010 The Supreme Court delivered
    its ruling refused leave to
    appeal on the question of facts
    alone and ordered that the
    interim stay Orders given by
    Sevua, J on 19th February,
    2010 remain until the
    remaining grounds of the
    appeal were determined.
    (Pruaitch vs. Manek [2010]
    SC1052)
    30th June 2010 The Supreme Court comprising their The Supreme Court reserved
    Honours Sakora, Lenalia and its ruling.
    Manuhu, JJ dealt with the remaining
    grounds of the Plaintiff’s Appeal in
    SCA No. 7 of 2010.

  • Page 6 of 19

  • 31st March 2011 The Supreme Court delivered
    its decision (Pruaitch vs.
    Manek [2011] SC1093 and
    made the following Orders
    (a) The Appeal is allowed;
    (b) The ruling and order
    of the National Court
    made on February 2010
    in OS No, 34 of 2010 –
    Honourable Patrick
    Pruaitch MP vs. Chronox
    Manek & Ors is quashed.
    (c) Proceedings OS No.
    34 of 2010 – Honourable
    Patrick Pruaitch MP vs.
    Chronox Manek is
    reinstated and shall be
    heard by the National
    Court presided over by
    another judge;
    (d) Pursuant to section 23
    (2) 23 (2) and 155 (4) of
    the Constitution and until
    the hearing and
    determination of all the
    Appellants claims herein,
    the Respondents their
    officers, servants , agents
    or whomsoever, are
    hereby restrained from
    taking any further actions
    or steps or conducting any
    further inquiries under the
    Organic Law or otherwise
    pursuant to the referral;
    (e) Order 3 of the
    Supreme Court Orders
    made on 31st May 2010
    on suspension is
    discharged.
    14th June 2011 His Honour Kandakasi J issued
    certain directional Orders in regard
    to the conduct of the proceedings OS
    No 34 of 2010 – Honourable Patrick
    Pruaitch MP vs. Chronox Manek &
    Ors

  • Page 7 of 19

  • 05th July, 2011 Aggrieved by the manner in which
    these proceedings, leading up to the
    making of the directional Orders of
    14th June, 2011 were conducted, the
    plaintiff/applicant filed an
    application for leave to Appeal.
    (SCA No. 74 of 2011) against the
    directional Orders of his Honour
    Kandakasi, J.
    15th July 2011 His Honour Injia, CJ (sitting as a Leave to Appeal granted
    single Supreme Court Judge) heard
    the leave application
    th July, 2011 The matter returned before Injia, CJ. Certain Orders handed down
    19
    His Honour heard an application for by his Honour Kandakasi, on
    stay of the Orders of Kandakasi J 14th June, 2011 were stayed
    made on the 14th of June 2011 until the hearing and
    determination of the Appeal.
    26th July 2011 Kandakasi, J recalled the matter in Kandakasi J ordered that the
    OS No. 34 of 2010 orders made on the 14th June
    2011 were forthwith vacated.
    05th August 2011 Appeal (SCA No. 86 of 2011)
    against the decision of Kandakasi, J
    made on 26th July, 2011 vacating the
    Orders of 14th June 2011 was
    functus officio when the stay order
    of the Supreme Court was binding on
    the primary judge.
    16th December, Appeals, SCA No. 74 of 2011 and Ruling reserved.
    SCA No. 86 of 2011 heard by the
    2011
    Supreme Court.
    02nd March 2012 Decision delivered (Batari,
    Gabi and Makail, JJ)
    (Pruaitch vs. Manek [2012]
    SC1168) – Orders:
    1. The Appeal SCA No.
    74 of 2011 is dismissed;
    2. The Appeal SCA No.
    86 of 2011 is upheld;
    3. The judgment Orders
    and directions made by
    Honourable Justice
    Kandakasi on 26th July
    2011 in OS No. 34 of 2010
    are discharged, set aside
    and quashed.

  • Page 8 of 19

  • 05th September Notice of Motion seeking discovery Heard on 21 October 2012.
    under Order 9 Rules 5 and 7 of the Ruling reserved, Kassman,
    2012
    National Court Rules filed
    03rd December, Ruling delivered refusing
    relief sought by applicant in
    2014
    notice of motion (filed 5
    September 2015); Kassman J.
    31st March 2015 Appeal (SCA No. 1 of 2015 – Leave to Appeal granted on
    Pruaitch vs. Manek) filed 24th March, 2015.
    16th December Appeal heard by the Supreme Court Decision reserved
    (SCA No. 01 of 2015)
    2015
    09th June, 2017 Judgment delivered.
    (Pruaitch vs. Manek [2017]
    SC 1593)

    8. Given the track and the flow of events that have occurred or actions
    undertaken by the applicant to seek certain reliefs or remedies before the
    Courts, the third respondent has not been unable to convene to determine the
    referral.

    Applicant’s submission

    9. The applicant submits that he has not been heard on the allegations of
    misconduct levelled against him and seeks the following:

    • A declaration pursuant to section 23 (2), 155 (4) and 217 (6) of the
    Constitution that the referral of the matter of an investigation of the
    Plaintiff for misconduct in office by the First Defendants to the
    Second Defendant (“the Referral’’) under section 20 (4) of the
    Organic Law on the Duties and Responsibilities of Leadership (“the
    Constitutional Law”) is unconstitutional, in excess of the jurisdiction
    of the First Defendant and therefore illegal, invalid and of no force or
    effect, because the First Defendants did not afford the Plaintiff a right
    to be heard before making the Referral, in breach of their duty to do
    under section 20 (3) of the Constitutional Law.
    • A declaration pursuant to section 23 (2), 155 (4) and 217 (6) of the
    Constitution that the referral under section 20 (4) of the Organic Law
    on the Duties and Responsibilities of Leadership (“the Constitutional
    Law”) is unconstitutional, in excess of the jurisdiction of the First
    Defendant and therefore illegal, invalid, and of no force or effect,
    because the First Defendants did not afford the Plaintiff a right to be
    heard before making the referral, in breach of their duty to do under
    section 2 (3) of the Constitutional Law;
    • Pursuant to section 23 (2), and 155 (4) of the Constitution, a
    permanent injunction prohibiting forthwith the Defendants their
    officers, employees, servants, agents or whosoever, from taking any

  • Page 9 of 19

  • further actions or steps under the Constitutional Law or otherwise
    pursuant to the Referral.”
    • Given the above breaches, he now says that he is entitled to seek a
    referral pursuant to Order 4 Rule 42 and Rule 15 (1) of the National
    Court Rules that the matter be referred under s 18 (2) of the
    Constitution for interpretation.

    Respondent’s submission

    10. The first, second and fourth defendants submit that this is an appropriate
    case for this Court to exercise its inherent power to intervene at this stage of the
    proceedings to prevent further abuse of its process. They submit further that
    essentially, the cause of action in the within proceedings is that the Commission
    did not afford the Plaintiff a right (a further right) to be heard before making the
    Referral, on breach of their duty to do so under section 20 (3) of the Organic
    Law on Duties and Responsibilities of Leadership (OLDRL.).

    11. They say that this matter has already been determined in Pruaitch vs.
    Manek [2017] SC 1593 (see paragraph 21 of judgment); Pruaitch vs. Manek
    [2011] SC1052 at paragraph 36 & 37 of judgment.

    12. Furthermore, there has been a long delay in prosecuting this matter.
    After filing these proceedings on 04th February, 2010, the plaintiff did not
    bring his claim to trial and instead, has engaged in making endless interlocutory
    applications and perpetuating appeals against every decision made on such
    interlocutory applications. The plaintiff and his Lawyers have successfully
    manoeuvred the appeal process by way of a delay tactic for the Leadership
    Tribunal hearing and soaked up 8 years in the appeal process. Therefore there is
    a real urge, in the overall circumstance of this case, to put an end to these never
    ending proceedings and allow the Leadership tribunal Hearing to commence,
    without further delay.

    13. The first and second Defendants submit that the balance of justice and
    convenience, both in the subject to the Leadership Code is to allow the
    allegations to be proceeded with, to be finally determined on their merits, by an
    appropriate tribunal and seek orders that the proceedings be dismissed as being
    an abuse of the process of Court and with costs on a solicitor and client basis.

    Issues for determination

    14. In considering this application, I am led to ask the question as to whether
    it is proper for this court to determine this application; when the authority
    mandated to oversee the processes and referral of a leader is yet to complete its
    roles and responsibilities under the Organic Law on Duties and Responsibilities
    of Leadership.
    15. Furthermore, whether it is appropriate to seek a referral to the Supreme

  • Page 10 of 19

  • Court pursuant to s 18 (2) of the Constitution, when the applicant has had two
    opportunities before the Supreme Court and has had both appeals dismissed on
    matters relevant to the cause of action before this court?

    Law

    16. It is clear that the Leadership Code was enacted to guard against abuse of
    office and to uphold the integrity of leaders and of the office they hold. Section
    27 of the Constitution provides for “Responsibilities of Office”: It states:-

    27. Responsibilities of office.

    (1) A person to whom this Division applies has a duty to
    conduct himself in such a way, both in his public or official
    life and his private life, and in his associations with other
    persons, as not-
    (a) to place himself in a position in which he has or could
    have a conflict of interests or might be compromised
    when discharging his public or official duties; or
    (b) to demean his office or position; or
    (c) to allow his public or official integrity, or his personal
    integrity, to be called into question; or
    (d) to endanger or diminish respect for and confidence in
    the integrity of government in Papua New Guinea.
    (2) In particular, a person to whom this Division applies shall
    not use his office for personal gain or enter into any
    transaction or engage in any enterprise or activity that
    might be expected to give rise to doubt in the public mind as
    to whether he is carrying out or has carried out the duty
    imposed by Subsection (1).
    (3) it is the further duty of a person to whom this Division
    applies
    (a) to ensure, as far as is within his lawful power, that his
    spouse and children and any other persons for whom
    he is responsible (whether morally, legally or by
    usage), including nominees, trustees and agents, do
    not conduct themselves in a way that might be
    expected to give rise to doubt in the public mind as to
    his complying with his duties under this section; and
    (b) if necessary, to publicly disassociate himself from any
    activity or enterprise of any of his associates, or of a
    person referred to in paragraph (a), that might be
    expected to give rise to such a doubt.
    (4) The Ombudsman Commission or other authority prescribed
    for the purpose under Section 28 (further provisions) may,
    subject to this Division and to any Organic Law made for the

  • Page 11 of 19

  • purposes of this Division, give directions, either generally or
    in a particular case, to ensure the attainment of the objects
    of this section.
    (5) A person to whom this Division applies who —
    (a) is convicted of an offence in respect of his office or
    position or in relation to the performance of his
    functions or duties; or
    (b) fails to comply with a direction under Subsection (4)
    or otherwise fails to carry out the obligations imposed
    by Subsection (1), (2) and (3), is guilty of misconduct
    in office.

    17. In this regard, a person subject to the Leadership Code is expected to
    perform at a level of discipline well beyond that of an ordinary citizen. In the
    event that a breach occurs, Section 27 of the Constitution is invoked to deal
    with that person appropriately. Essentially, the public office or position which
    the Constitution and the Organic Law on the Responsibilities on Leadership are
    concerned with is any of those “Leadership” offices or positions enumerated
    under s 26 (1) Constitution.

    Consideration of motions

    18. I note that the proceedings arose from a referral to the Public Prosecutor
    following investigation of allegations under the Organic Law on Duties and
    Responsibilities of Leadership; s 26. In this regard, I am led to refer to the case
    of John Nilkare vs. The Ombudsman Commission of Papua New Guinea [1999]
    PNGLR 333, The Supreme Court (Amet CJ, Kapi DCJ, Los, Injia JJ) held:

    4. “The leadership Code is an important law which must be
    administered effectively and speedily to protect the people and the
    nation from improper and corrupt conduct of people in leadership
    positions. In balancing all these considerations, we have reached the
    conclusion that it would be in the interest of everyone that this Court
    should not quash the referral but allow the Public Prosecutor to
    proceed with the charges before a Leadership tribunal. In reaching
    this conclusion we have considered the four new charges that were
    included in the referral and bias, which has been established on the
    part of the Commission. These procedural errors only affect the rights
    of the appellant at a preliminary stage only and do not affect the
    substantive rights, which will be determined by the Leadership
    Tribunal. In relation to the four new charges, the appellant by now has
    ample opportunity to consider the charges and he will not doubt
    prepare his defence at the tribunal hearing. Any bias by respondent
    will not have any impact on the tribunal, which is differently
    constituted….
    7. Since the decision of the Commission is not conclusive or

  • Page 12 of 19

  • determinative of any of the allegations, the balance of justice and
    convenience both in the interest of the people of Paua New Guinea
    and leaders who are subject to the Leadership Code is to allow the
    allegations to be proceeded with to be finally determined on their
    merits. The court does not believe that the balance of justice and
    convenience and the interest of leadership integrity and honesty and
    good government would be met by totally quashing the referral as
    sought by the appellant….

    19. It appears that all possible avenues available within the Court system
    have all been pursued by the plaintiff/applicant in regard to the referral. Having
    stated this, I am not saying that a citizen does not have the right to the full
    protection of the law.

    20. It is equally important to note that due process of the law must be given
    its full effect and to exhaust its processes under law to determine the culpability
    of a leader alleged to have offended his leadership position.

    21. In order to answer this question, a number of matters need to be
    considered and I find these have been already determined in the applicant’s own
    appeals in Pruaitch vs. Manek [2017] SC 1593 and Pruaitch vs. Manek [2010]
    SC1052.

    22. In addition, I am minded to refer to the Supreme Court judgment in
    SC581 – Enforcement Pursuant to Constitution s 57; Application by Gabriel
    Dusava, where the Supreme Court stated which I quote: “the court must enforce
    the primary purpose of the leadership code. That is the Leadership Code was
    intended to protect the people of Papua New Guinea from improper conducts by
    leaders”… Further, “Section 25 of the Constitution is entirely relevant to
    generous interpretation of the constitution, avoiding the austerity of tabulated
    legalism and enables the National Goals and Directive Principles to be fully
    taken into account.” (Underlining mine). For instance in section 26(2) of the
    Constitution for example it is said that —

    “This Division applies to and in relation to a person referred to in
    subsection (1) not only in the office referred to in that subsection but also
    in any other office or position he holds under any law by virtue of that
    office”.
    By this, it means that those leaders who know that they have not done
    anything wrong can remain in office until they receive a declaration of
    ‘no fault’ by a tribunal so that the court should not consider that to apply
    strict law may encourage the mischief that the Leadership Code seeks to
    prevent.
    Thus a person who has failed in his responsibilities of office can rectify
    the situation by availing themselves to the due processes of the law and
    allowing that process to prove themselves worthy of being a leader…

  • Page 13 of 19

  • 23. Given the above, it is my view that this Court should uphold the purpose
    of the Leadership Code thereby guaranteeing the protection of the people of
    Papua New Guinea and give meaning to Section 28 (4) of the Constitution (see
    Supreme Court Reference No 1 of 1978; Re Leo Robert Morgan [1978] PNGLR
    460 at 464, and “to preserve the people of Papua New Guinea from misconduct
    by its leaders” Supreme Court Reference No. 5 of 1980 re: Joseph Auna [1980]
    PNGLR 500 at p 504.

    24. The purpose and entire thrust of Organic Law on the Responsibilities and
    Duties of Leadership; Section 26 of the Constitution is directed towards
    removing a person who is considered, after due inquiry, to be unworthy of
    continuing in office.

    25. Given these circumstances, the issues for determination here are in
    regard to whether this is an appropriate case for this Honourable Court to
    exercise its power under Order 12 Rule 40 (1) (a) (b) and (c) of the National
    Court Rules and Constitution Section 155 (4) and/ or its inherent power to
    intervene at his stage of the proceedings to prevent any further abuse of its
    process.

    26. Firstly, the processes of the First Respondent to execute their functions
    and responsibilities as mandated under the Organic Law on Duties and
    Responsibilities of Leadership which is mainly to maintain a check and balance
    on good governance and accountability of good leadership.

    27. Upon perusal of the materials on the court file and matters deposed to by
    both parties, I note that the applicant has to a greater extent been given every
    avenue available within the Court system to pursue and to protect his rights and
    or interest. Whilst these appear on the face of records fair and equitable, it must
    also be said that the same processes and avenues must be said to be made
    available to the first respondent whereby it is allowed to carry out its functions
    and responsibilities without hindrances to ensure good governance,
    accountability and good leadership. Likewise the second respondent.

    28. Having express these views, it is still in the interest of justice that the rule
    of law must prevail. This means that due process must be allowed to take its
    course, whatever the outcome.

    29. All persons are entitled under law to the protection of the law, including
    the applicant. This protection applies within law and upon proper applications
    of the law and within the spirit of the Constitution. In this present case, the
    proceedings emanated from the “referral” from the first respondent to the
    second respondent in 2009. Since then, the process has somewhat come to a
    “standstill” due to the multiple proceedings here in the National and Supreme
    Courts. Numerous pronouncements have been made, both at the National and

  • Page 14 of 19

  • Supreme Court. These judgments are matters of public record and I need not
    recite them all in full as these judgments are available for public consumption.

    30. In spite of these pronouncements, the applicant now seeks another relief
    with regard to this current application for a referral under s 18 (2) of the
    Constitution to the Supreme Court for constitutional interpretation. Upon due
    consideration of the materials presented, I am not satisfied that this is a matter
    that requires further determination at the Supreme, because the matters here
    have been raised and argued before the Supreme Court in 4 separate
    proceedings which have all been dismissed for a range of reasons. Given that
    the applicant has raised and argued this very issue before the Courts in
    proceedings that have now been concluded more particularly in the proceedings
    Pruaitch vs. Manek & Ors [2017] SC1593; the Supreme Court (Manuhu,
    Murray & Pitpit, JJ) (09th June, 2017) at paragraphs 14 to 20 inclusive and
    paragraphs 25 and 26 said; which I adopt:

    “14. We are also of the view that it is not in the public interest for
    proceedings of the Commission to be subjected to other civil
    proceedings. Such is the growing undesirable judicial development in
    the country which has to be discouraged by proper exercise of
    discretion. In criminal cases, it was held in Wartoto vs. The State
    (2015) SC1411 that the National Court sitting in its civil jurisdiction
    should not interfere with criminal proceedings. An accused person
    still has the right of protection of the law under Section 37 of the
    constitution and he or she can still exercise the other avenues for
    redress available to him or her under the Criminal Justice System, the
    Criminal Code and Criminal Practice Rules.
    15. In relation to proceedings under the Leadership Code, we are also
    of the view that the National Court in its civil jurisdiction should not
    interfere with proceedings of the process under the Leadership Code.
    Proceedings under the Leadership Code are sanctioned by an
    Organic Law – not any ordinary Act of Parliament. For that reason
    alone, an aggrieved person enforcing his private right should not be
    allowed to interfere with the proceeding when it is still in progress. In
    the exercise of discretion, the Courts ought to take into account the
    hierarchy of laws and supremacy of Constitutional Laws and refrain
    from entertaining intervening civil proceedings.
    16. Secondly a leader found guilty does not lose his right to challenge
    the proceeding of the Commission and any adverse finding of a
    Leadership Tribunal. With his right preserved, it is against public
    interest for a Leader to interfere midstream with a proceeding under
    the Leadership Code. In this case, for instance, the Appellant’s right
    to challenge his referral will not be lost if he is found guilty. There
    would be any cause of concern if he is found not guilty.

    17. The OS proceeding, in our view, was instituted prematurely. A

  • Page 15 of 19

  • cause of action in a case like this matures only when a Leader is
    found guilty and penalised. In other words, the constitutional process
    has to be completed before any challenge can be made against the
    process including decisions made by the Commission, the Public
    Prosecutor or the Tribunal. But if a leader is found not guilty, there
    would not be any cause of action against the constitutional process.
    18. Thirdly the Commission, like the National Court, is an institution
    of the State. Institutions of the State are charged with the
    responsibility, with enabling laws, to administer the affairs of this
    country. The Commission should be permitted to carry out that
    constitutional function unhindered by private law cause of action.
    19. Furthermore, when civil suits are entertained prematurely, the
    same cause of action is thus subjected to two different processes. This
    course is more likely to result in delays. Delays in the prosecution of
    leaders charged with misconduct offences undermine good
    governance and the public loses confidence in the systems of
    government.
    20. This case is a classic example. The referral was made on 22nd
    July 2009. The OS proceeding was filed in February 2010. To date,
    there has been a delay of more than eight years. The delay has
    seriously undermined the Ombudsman Commission, the Organic Law
    and all efforts to promote good governance in the country…

    31. In Andrew Nagari vs. Rural Development Bank (2007) N3295; Gavara-
    Nanu, J) said:

    “The Court also has the inherent jurisdiction to dismiss the proceedings
    summarily for abuse of its process…The courts’ power in this regard is
    wide. The phrase “abuse of process’’ connotes that the process of the
    court must be used properly and bona – fide and are not to be abused.
    Thus, where the court’s machinery is improperly and incorrectly used, the
    Court has the duty to prevent such abuse of its process.”

    32. In Agiru vs. Electoral Commission [2002] SC 687, the Court held:

    “this Court in exercising its inherent power and its authority to do all
    things that are necessary for the proper administration of justice and
    all powers reasonably required to enable this Court to perform
    efficiently its judicial functions and to protect its dignity and integrity;
    it is the court’s duty to protect itself by ensuring that vexatious
    litigants do not abuse the Court’s process by instituting frivolous or
    vexatious suits. It behove litigants therefore to carefully choose their
    causes of action before they commence proceedings in this court

  • Page 16 of 19

  • purporting to enforce their rights”.

    33. Furthermore, in John Nilkare vs. The Ombudsman Commission of Papua
    New Guinea [1999] PNGLR 333, The Supreme Court (Amet CJ, Kapi DCJ,
    Los, Injia JJ held:

    4. “The leadership Code is an important law which must be
    administered effectively and speedily to protect the people and the
    nation from improper and corrupt conduct of people in leadership
    positions. In balancing all these considerations, we have reached the
    conclusion that it would be in the interest of everyone that this Court
    should not quash the referral but allow the Public Prosecutor to
    proceed with the charges before a Leadership tribunal. In reaching
    this conclusion we have considered the four new charges that were
    included in the referral and bias, which has been established on the
    part of the Commission. These procedural errors only affect the rights
    of the appellant at a preliminary stage only and do not affect the
    substantive rights, which will be determined by the Leadership
    Tribunal. In relation to the four new charges, the appellant by now
    has ample opportunity to consider the charges and he will not doubt
    prepare his defence at the tribunal hearing. Any bias by respondent
    will not have any impact on the tribunal, which is differently
    constituted….
    7. Since the decision of the Commission is not conclusive or
    determinative of any of the allegations, the balance of justice and
    convenience both in the interest of the people of Paua New Guinea
    and leaders who are subject to the Leadership Code is to allow the
    allegations to be proceeded with to be finally determined on their
    merits. The court does not believe that the balance of justice and
    convenience and the interest of leadership integrity and honesty and
    good government would be met by totally quashing the referral as
    sought by the appellant….

    34. In Pruaitch vs. Manek [2017] SC 1593, Patrick Pruaitch v Ombudsman
    Commission (2011) SC1263; Pruaitch vs. Manek [2010] SC 1052; the Supreme
    Courts had discussed at great length the issues raised by the applicant and
    application of the appropriate law in relation to these issues… The basic
    principles that are to be applied when the Court is considering whether or not
    there has been an abuse of its processes are well established in this jurisdiction
    (see Somare vs. Manek (2011) SC 1118 (Somare Case):

    “Section 217 (6) of the Constitution allows for judicial review as the
    only way to challenge any decisions of the Ombudsman but restricted
    to the Ombudsman acting in excess of its jurisdiction. Accordingly,
    once an application for leave is refused that should be the end of the
    matter… (See also Wartoto vs. the State [2015] SC 1411)

  • Page 17 of 19

  • “There is no doubt that this court, as a superior court of record has
    inherent jurisdiction to take steps to prevent any abuse of its
    processes. It is a power that extends to all situations where the justice
    of the case requires it to be exercised, and it is not confined to any
    closed categories of cases. It is a jurisdiction which the court has “to
    ensure that pursuit of its ordinary procedures by litigants does not
    lead to injustice…may be exercised at any stage of the proceedings
    where it appears to be demanded by the justice of the case…
    Abuse of the process of the Court is an expression used to describe
    any use of the process and procedures of the Court for an improper
    way. It encompasses a wide range of situations…” [Our underlining]

    35. In view of the foregoing, I find that the proceedings are an abuse of
    process of the court, given the whole history of this case commencing from the
    decision of the Ombudsman Commission to the present. I therefore adopt the
    statement in Pruaitch vs. Manek & Ors [2017] SC 1593 (paragraph 15) and say:

    “that the National Court in its civil jurisdiction should not interfere
    with proceedings of the process under the Leadership Code.
    Proceedings under the Leadership Code are sanctioned by an
    Organic Law – not any ordinary Act of Parliament. For that reason
    alone, an aggrieved person enforcing his private right should not be
    allowed to interfere with the proceeding when it is still in progress. In
    the exercise of discretion, this Court ought to take into account the
    hierarchy of laws and supremacy of Constitutional Laws and refrain
    from entertaining intervening civil proceedings.
    16. Secondly a leader found guilty does not lose his right to challenge
    the proceeding of the Commission and any adverse finding of a
    Leadership Tribunal. With his right preserved, it is against public
    interest for a Leader to interfere midstream with a proceeding under
    the Leadership Code. In this case, for instance, the Appellant’s right
    to challenge his referral will not be lost if he is found guilty. There
    would be any cause of concern if he is found not guilty.
    17. The OS proceeding, in our view, was instituted prematurely. A
    cause of action in a case like this matures only when a Leader is
    found guilty and penalised. In other words, the constitutional process
    has to be completed before any challenge can be made against the
    process including decisions made by the Commission, the Public
    Prosecutor or the Tribunal. But if a leader is found not guilty, there
    would not be any cause of action against the constitutional process.
    18. Thirdly the Commission, like the National Court, is an institution
    of the State. Institutions of the State are charged with the
    responsibility, with enabling laws, to administer the affairs of this
    country. The Commission should be permitted to carry out that
    constitutional function unhindered by private law cause of action.
    19. Furthermore, when civil suits are entertained prematurely, the

  • Page 18 of 19

  • same cause of action is thus subjected to two different processes. This
    course is more likely to result in delays. Delays in the prosecution of
    leaders charged with misconduct offences undermine good
    governance and the public loses confidence in the systems of
    government.
    20. This case is a classic example. The referral was made on 22nd
    July 2009. The OS proceeding was filed in February 2010. To date,
    there has been a delay of more than eight years. The delay has
    seriously undermined the Ombudsman Commission, the Organic Law
    and all efforts to promote good governance in the country…

    Conclusion

    36. These proceedings have been ongoing in the last 8 years since filing this
    proceedings on 4th February, 2010. In fact, two Supreme Court decisions
    (Pruaitch vs. Manek [2010] SC1052; Pruaitch vs. Manek [2017] SC1593) have
    already determined that the plaintiff’s claim is premature, without merits and an
    abuse of the process of the court.

    37. More so, it would be pointless, having to refer the same issues for
    interpretation under s 18(2) of the Constitution when these same issues have
    already been determined in Pruaitch vs. Manek [2010] SC1052 and Pruaitch vs.
    Manek [2017] SC1593. More specifically, in Pruaitch vs. Manek [2017]
    SC1593) where the Supreme Court (Manuhu, Murray & Pitpit, JJ) stated that
    these proceedings (OS No. 34 of 2010) were:

    (i) Instituted prematurely;
    (ii)The Supreme Court should not have interfered with the
    proceedings of the process under the Leadership code;
    (iii) The Plaintiff did not have the evidence to support his claim
    in OS No. 34 of 2010; and
    (iv) …
    38. The Plaintiff was referred in 2009 and the parties are still dealing with
    the same matter before this Court. The Tribunal Hearing should proceed,
    without delay. The Plaintiff has recourse at the Tribunal Hearing. The nature of
    relief sought in these proceedings is available before the Tribunal. Any alleged
    procedural errors or issues of unfairness can be appropriately raised at the
    Leadership Tribunal.

    39. Taking into account the background of the present proceeding, other
    preceding proceedings (before this court and the Supreme Court) involving the
    same matters and issues, and given the principles discussed above, I decline the
    application sought by the applicant in his notice of motion for referral under s
    18 (2) of the Constitution.

  • Page 19 of 19

  • 40. The first and second respondents must perform their roles and
    responsibilities as envision in s 26 of the Constitution and to fulfil the purpose
    of the Leadership Code thereby guaranteeing the protection of the people of
    Papua New Guinea and give meaning to Section 28 (4) of the Constitution (see
    Supreme Court Reference No 1 of 1978; Re Leo Robert Morgan [1978] PNGLR
    460 at 464. Further, the overall purpose of the Organic Law on Duties and
    Responsibilities of Leadership is “to preserve the people of Papua New Guinea
    from misconduct by its leaders” Supreme Court Reference No. 5 of 1980 re:
    Joseph Auna [1980] PNGLR 500 at p 504. It is therefore in the interest of good
    public administration that leaders occupying elective office account for their
    conduct. This will, in turn, enable a disposition of the Leadership Tribunal
    Hearing and to bring these matters to finality without further delay.

    41. Given the foregoing, the overall consideration of this case warrant a
    dismissal of these proceedings, as being an abuse of the process of the Court
    and I so rule.

    Orders of the Court

    1. The proceedings are dismissed for being an abuse of the Court’s process.
    2. Costs follow the event. Costs to be taxed if not agreed.

    Orders accordingly
    ________________________________________________________________
    Young & Williams Lawyers: Lawyers for the Applicant
    Ombudsman Commission In-House Counsel: Lawyers for the First Respondent
    Michael Wagambie Lawyers: Lawyers for the Second & Fourth Respondents