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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