Hon Patrick Pruaitch v The Ombudsman Commission and others [2018] SC1884

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    The latest appeal by Patrick Pruaitch to avoid appearing before a Leadership Tribunal appointed in 2010 to hear charges against him of misconduct in office, was rejected by the Supreme Court.

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  • SC1884
    PAPUA NEW GUINEA
    [IN THE SUPREME COURT OF JUSTICE]

    SCA NO. 107 OF 2018

    BETWEEN
    HON PATRICK PRUAITCH MP
    Appellant

    AND
    CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI,
    COMPRISING THE OMBUDSMAN COMMISSION
    First Respondent

    AND
    JIM WALA TAMATE, THE PUBLIC PROSECUTOR
    Second Respondent

    AND
    HON DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR
    MAGISTRATES PETER TOLIKEN & NERRIE ELIAKIM,
    COMPRISING THE LEADERSHIP TRIBUNAL
    Third Respondent

    AND
    THE INDEPENDENT STATE OF PAPUA NEW GUINEA
    Fourth Respondent

    Waigani: Kandakasi DCJ, Shepherd and Berrigan JJ
    2019: 28th August, 6th December

    SUPREME COURT – Appeal against dismissal by the National Court of
    proceedings as abuse of process – Power of National Court to review
    proceedings of Ombudsman Commission restricted to cases where the
    Commission has exceeded its jurisdiction – S.155(3)(e) and S.217(6) of
    Constitution and s.24 of Organic Law on Ombudsman Commission – Abuse
    of process for litigant who has selected one mode of proceedings and failed to
    prosecute same cause of action by an alternative proceeding – Both Supreme
    Court and National Court have inherent power to intervene at any stage of

  • Page 2 of 25

  • proceedings to prevent abuse of process – Circumstances which give rise to
    abuse of process are varied and not limited to fixed categories – Court must
    take into account circumstances of case, prejudice to each of the parties and
    need for public confidence in administration of justice – Delay in conduct of
    proceedings and failure to take available procedural steps are factors capable
    of constituting abuse of process.

    LEADERSHIP TRIBUNAL – Delay in commencement of Leadership
    Tribunal’s hearing of charges caused by piecemeal interlocutory applications
    to National Court and multiple appeals to Supreme Court can constitute
    abuse of process – Constitutional process under Leadership Code sanctioned
    by Organic Law on Duties and Responsibilities of Leadership should be
    completed before any judicial challenge against that process may be brought
    in National and Supreme Courts, including judicial challenges against
    decisions made by the Ombudsman Commission, the Public Prosecutor or a
    Leadership Tribunal.

    Cases Cited:
    Papua New Guinea Cases

    Patterson Lowa, Minister for Minerals and Energy and Others v. Wapula Akipe
    and Others [1991] PNGLR 265
    Attorney-General and Luke Lucas v. Public Employees Association of Papua
    New Guinea [1993] PNGLR 264
    Nilkare v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 333
    Anderson Agiru v. Electoral Commission and The State (2002) SC687
    Curtain Bros (PNG) Ltd v UPNG (2005) SC788
    Pruaitch v. Manek (2009) N3903
    Pruaitch v. Manek (2010) N4149
    Pruaitch v. Manek (2010) SC1052
    Pruaitch v. Manek (2011) SC1093
    Somare v. Manek (2011) SC1118
    Pruaitch v. Manek (2012) SC1168
    Wartoto v. The State (2015) SC1411
    Micah v. Lua (2015) SC1445
    Special Reference by the Attorney General pursuant to Constitution, Section 19
    (2016) SC1534
    Jacob Popuna v. Ken Owa (2017) SC1564
    Pruaitch v. Manek (2017) SC1593
    Telikom (PNG) Ltd v. Rava (2018) SC1694
    Pruaitch v. Manek (2018) N7379

  • Page 3 of 25

  • Overseas Cases Cited:

    Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC
    529
    Batistatos v. Roads and Traffic Authority of NSW (2006) 226 CLR 256

    Legislation and other materials cited:

    Sections 18, 23, 29, 155(4) and 217(b) of the Constitution
    Sections 20, 27 of the Organic Law on the Duties and Responsibilities of
    Leadership
    Section 24 of Organic Law on the Ombudsman Commission
    Order 12 Rule 40 of the National Court Rules

    Counsel

    Mr G. Shepherd and Mr P. Tabuchi, for the Appellants
    Mr V. Narokobi and Mr M. Kirk, for the First Respondent
    Mr L. Kandi, for the Second and Fourth Respondents

    DECISION ON APPEAL

    06th December, 2019

    1. BY THE COURT: This is an appeal against the whole of the decision of
    the National Court delivered on 19 June 2018 dismissing the entire proceedings
    in OS No. 34 of 2010(OS No 2) on the basis that the proceedings were an abuse
    of process: Pruaitch v. Manek (2018) N7379.

    2. The decision was made out of two motions:one filed by the Appellant on
    12th February 2018 seeking to refer questions to the Supreme Court by
    invoking s. 18(2) of the Constitution; and the other by the First Respondent
    filed on 23rd February 2018 seeking to dismiss the proceedings pursuant to
    Order 12 Rule 40(1)(a)(b) and (c) of the National Court Rules for failing to
    disclose a reasonable cause of action, for being frivolous and vexatious, and for
    being an abuse of process.

    3. The First Respondent’s Motion was filed in response to the Appellant’s
    Motion. For completeness, we also note that a third motion, filed by the Fourth
    Respondents on 18 December 2017, seeking the same relief as that of the First
    Respondent, was also before the Court, and heard together with the latter.

    FACTUAL AND PROCEDURAL BACKGROUND

  • Page 4 of 25

  • 4. The matter has a long history:

    • On 29thSeptember 2006 the First Respondent (the Commission)
    wrote to the Appellant pursuant to s. 20(3) of the Organic Law on the
    Duties and Responsibilities of Leadership (OLDRL) and informed him
    of his right to be heard on 11 allegations of misconduct in office.

    • In October 2006 the Appellant appeared in person before the
    Commission and gave a verbal response to the allegations. In late
    November 2006, in further exercise of his right to be heard, the
    Appellant submitted a detailed written response to all 11 allegations.

    • On 22ndJanuary 2008 the Commission issued a summons
    requiring Mr Kanawi Pouru, Managing Director of PNG Forest
    Authority, to provide certain information. Mr Pouru responded to the
    Commission on 4thFebruary 2008.

    • On 22ndJuly 2009 the Commission wrote to the Appellant
    advising that it had considered his responses to the 11 allegations and
    decided to refer 8 of those allegations to the Public Prosecutor for
    possible prosecution under ss. 20(4) and 27(1)(a) of the OLDRL and s.
    29(1) of the Constitution.

    • On 20 th August 2009 the Appellantfiled judicial review
    proceedings OS No. 456 of 2009 (OS No 1) challenging the referral
    pursuant to Order 16 of the National Court Rules on the basis that the
    Commission had, inter alia, exceeded its jurisdiction and that he had
    been denied the right to be heard on the allegations.

    • On 8th September 2009 Hartshorn J refused leave for judicial
    review on the basis that there was no arguable case that the Appellant
    had not been duly heard on all 8 allegations: Pruaitch v. Manek (2009)
    N3903. The appellant did not appeal that decision.

    • The Public Prosecutor subsequently wrote to the Chief Justice
    requesting the appointment of an appropriate tribunal to inquire into
    the matter. On 3rd February 2010 Chief Justice Sir Salamo Injia
    appointed the Third Respondent (the Leadership Tribunal).

    • On 4thFebruary 2010, almost five months after leave for judicial

  • Page 5 of 25

  • review had been refused, the Appellant filed a new set of proceedings,
    OS 34 of 2010 (OS No 2), pursuant to ss. 23, 155(4) and 217(b) of the
    Constitution seeking declaratory, preventative, injunctive and stay
    orders, including declaratory orders that the Commission’s referral to
    the Public Prosecutor was unconstitutional, in excess of jurisdiction
    and therefore illegal, invalid and of no force and effect on the basis,
    again,that the Appellant had been denied his right to be heard on the
    allegations. It is these proceedings that are the subject of this appeal.

    • On 12thFebruary 2010 Kariko J dismissed the proceedings in OS
    No 2 on the basis that the Appellant was in effect seeking to bring the
    same claim as that made in OS No 1, that there was therefore a
    multiplicity of proceedings that was bad for abuse of process, and,
    further that the matter was res judicata: Pruaitch v. Manek (2010)
    N4149.

    • On the same day the Appellant appealed against the decision of
    Kariko J by filing proceedings SCA No 7 of 2010.The Appellant
    argued that Kariko J should have found as a fact that there were
    further investigations done by the Commission against him when Mr
    Pouru was summoned to provide information. Further, that the
    Commission should have given him an opportunity to be heard on the
    information provided by Mr Pouru before deciding whether to refer
    the matter to the Public Prosecutor. The Appellant argued that Kariko
    J erred when he found that the materials contained in Mr Pouru’s
    affidavit were not new.

    • On 19th February 2010 the Appellant obtained an ex parte stay
    order before Sevua J (sitting as a single judge of the Supreme Court),
    restraining the Tribunal from convening its hearing.

    • On 31stMarch 2010 the Supreme Court (Kirriwom, Gavara-Nanu
    and Davani JJ) refused leave to appeal on the question of fact alone on
    the basis that the Appellant was simply “rehashing” the same claim he
    had previously raised in OS No 1, and further that there was no
    arguable case that the matters deposed to in Mr Pouru’s affidavit
    constituted new investigations and new allegations. The Supreme
    Court ordered that the interim stay orders should remain until the
    remaining grounds of appeal were determined: Pruaitch v. Manek
    (2010) SC1052 (Pruaitch SC No 1 (2010)).

    • On 30thJune 2010 the Supreme Court (Sakora, Lenalia and

  • Page 6 of 25

  • Manuhu JJ) dealt with the remaining grounds of appeal. On
    st
    31 March 2011the Court allowed the appeal, quashed the order of
    the National Court in Pruaitch v. Manek (2010) N4149, reinstated OS
    No 34 of 2010 (OS No 2) and ordered that those proceedings be heard
    by the National Court presided over by another judge. The Supreme
    Court further restrained the Respondents, their officers, servants,
    agents, or whomsoever, from taking any further actions or steps or
    conducting any further inquiries under the OLDRL or otherwise
    pursuant to the referral, and discharged the order on
    suspension:Pruaitch v. Manek (2011) SC1093 (Pruaitch SC No 2
    (2011)). It is this decision which the Appellant relies upon as
    authority that the proceedings in OS No 2 could not be dismissed for
    abuse of process pursuant to Order 12 Rule 40.

    • On 14thJune 2011 the National Court proceedings in OS No 2
    returned to the National Court before Kandakasi, J (as he then was),
    who issued directions. On 5th July 2011 the Appellant filed an
    application for leave to appeal against those directions (SCA No. 74 of
    2011). On 15th July 2011, Injia, CJ (sitting as a single Supreme Court
    Judge) granted the Appellant leave to appeal on the basis that there
    was an arguable case of apprehension of bias and denial of fair
    hearing made out. On 19th July 2011 the matter returned before Injia,
    CJ. His Honour heard an application for stay and ordered that certain
    orders of Kandakasi, J made on 14 June 2011 be stayed until the
    hearing and determination of the appeal.

    • On 26th July 2011 Kandakasi J re-called the matter in OS No 2
    and vacated his orders of 14th June 2011.The Appellant appealed
    against that decision on 5th August 2011(SCA No. 86 of 2011) on the
    basis that in view of the stay order of 14th June 2011 in SCA No. 74
    of 2011his Honour was functus officio.

    • On 2nd March 2012 the Supreme Court (Batari, Gabi and Makail,
    JJ) dismissed the Appellant’s appeal in SCA No 74 of 2011 as an
    abuse of process. It upheld SCA No. 86 of 2011 and quashed the
    orders made by Kandakasi J on the basis they were ultra vires:
    Pruaitch v. Manek (2012)SC1168 (Pruaitch SC No 3 (2012)).

    • On 5th September 2012 the Appellant filed a Notice of Motion
    seeking discovery under Order 9 Rules 5 and 7 of the National Court

  • Page 7 of 25

  • Rules in OS No 2. On 3rd December 2014 Kassman J refused the
    application on the basis that any application for discovery should be
    made to the Leadership Tribunal.

    • On 8 January 2015 the Appellant filed an application for leave to
    appeal that decision. Leave was granted on 24th March 2015. The
    appeal was heard on 16th December 2015. On 9th June 2017 the
    Supreme Court (Manuhu, Murray and Pitpit JJ) dismissed the appeal
    and upheld the National Court decision: Pruaitch v. Manek (2017)
    SC1593 (Pruaitch SC No 4 (2017)).

    • On12th February 2018 the Appellant filed a notice of motion
    seeking the referral of two questions to the Supreme Court for
    interpretation pursuant to s. 18(2) of the Constitution. This was heard
    on 9th March 2018, together with the First and Fourth Respondents’
    motions for dismissal filed 18th December 2017 and 23rd February
    2018, respectively. On 19th June 2018 Polume-Kiele J dismissed the
    entire proceedings as being an abuse of process.

    • On 29th July 2018 the Appellant filed this appeal against that
    decision. We heard the appeal on 29th August 2019 and reserved our
    decision.

    GROUNDS OF APPEAL

    5. The Appellantrelies on four grounds of appeal. The first and fourth
    grounds concern the learned primary judge’s decision to grant the
    Commission’s motion to dismiss the whole of OS No 2 as an abuse of process.
    The second and third grounds challenge her Honour’s refusal to refer two
    questions to the Supreme Court for Constitutional interpretation.

    6. It is well established that an appellate court “will not interfere with a
    discretionary judgment on a procedural matter within [the primary judge’s]
    jurisdiction, except where the exercise of that discretion is clearly wrong, where
    the primary judge acted upon a wrong principle, was guided by extraneous or
    irrelevant matters, mistook the facts, or failed to take into account some material
    consideration. A discretionary judgment may be set aside if an identifiable error
    occurred in the exercise of discretion. Alternatively, it may be set aside where
    there is no identifiable error, but the resulting judgment or order is
    ‘unreasonable or plainly unjust’ and such that an error can be inferred”: Curtain

  • Page 8 of 25

  • Bros (PNG) Ltd v. UPNG (2005) SC788.

    GROUNDS ONE & FOUR: ABUSE OF PROCESS

    7. The Appellant submits that the learned trial judge erred in mixed law and
    fact in failing to find that the issue of whether or not the Appellant’s
    proceedings OS No 2 could be dismissed pursuant to Order 12 Rule 40 had
    been authoritatively and conclusively determined by the Supreme Court in
    Pruaitch SC No 2 (2011) and was res judicata, and that her Honour was bound
    by the Supreme Court decision, such that she should have dismissed the First
    Respondent’s motion as an abuse of process.

    8. We are of the view that this ground is misconceived.

    9. In Pruaitch SC No 2 (2011) the Supreme Court held that Kariko J was in
    error to find that the decision of Hartshorn J on the judicial review leave
    application was res judicata and that the filing of OS No 2 was bad for abuse of
    process.

    10. Whilst not determinative of these proceedings, we are of the view that
    Kariko J’s decision that OS No 2 was an abuse of process was correct. In those
    proceedings the Appellant sought leave to judicially review the Commission’s
    referral pursuant to Order 16 of the National Court Rules on the basis that he
    had been denied his right to be heard on the allegations referred. Leave was
    refused on the basis that there was no such arguable case. The Appellant did not
    appeal that decision. Instead he filed separate proceeding five months later
    seeking declaratory preventative, injunctive and stay orders that the
    Commission’s referral was unconstitutional, in excess of jurisdiction and
    therefore illegal, invalid and of no force and effect because he had been refused
    his right to be heard on the allegations. Thus he relied on the same cause of
    action. This amounted to an abuse of process for two reasons.

    11. Firstly, a combined reading of ss. 155(3)(e) and 217(6) of the
    Constitution and s. 24 of the Organic Law on the Ombudsman Commission
    makes it clear that the power of the National Court to review the proceedings of
    the Commission is restricted to cases where it is specifically alleged that the
    Commission has exceeded its jurisdiction: Somare v. Manek (Salika DCJ (as he
    then was), Kirriwom and Kandakasi J (as he then was) (2011) SC1118 at
    paragraphs 109 – 119. Thus, the proper and only mode for the appellant to
    bring his claim was pursuant to Order 16, which he had already tried and which
    had failed.

  • Page 9 of 25

  • 12. Secondly, it is an abuse of process for a litigant, having selected one
    mode of proceedings and failed, to prosecute the same cause of action through
    an alternative proceeding: see Attorney-General and Luke Lucas v. Public
    Employees Association of Papua New Guinea [1993] PNGLR 264; Anderson
    Agiru v Electoral Commission and The State (2002) SC687.

    13. It is immaterial that the appellant was not accorded an opportunity to
    argue the substantive merits of his review. That was the result of his deliberate
    decision not to avail himself of his right of appeal to the Supreme Court in the
    first instance against the refusal to grant leave under Order 16: see Agiru
    (supra); see also Telikom (PNG) Ltd v. Rava (2018) SC1694 at paragraph 20.

    14. Here we agree with the reasoning of the Supreme Court in Pruaitch SC
    No 1 (2010) at paragraphs 31 to 35; Somare v. Manek at paragraphs 21to 27 and
    Pruaitch No 4 (2017) at paragraph 25. Accordingly, we respectfullyrefuse to
    follow Pruaitch SC No 2 (2011).

    Abuse of process

    15. For the purpose of this appeal, however, the correctness or otherwise of
    the decision in Pruaitch SC No 2 (2011) is beside the point.

    16. It is not the case, as the Appellant contends, that the National Court was
    precluded by Pruaitch SC No 2 (2011) from ever finding that the proceedings in
    OS No 2 was an abuse of process. As mentioned above, the Supreme Court in
    that decision held that the primary judge erred in finding that OS No 2 was an
    abuse of process for bringing a multiplicity of proceedings. It remitted the
    substantive matter back to the National Court for hearing. Once the matter was
    before the National Court, the Court was entitled to deal with it in accordance
    with its jurisdiction, which jurisdiction was not and cannot be restricted by the
    Supreme Court.

    17. Pursuant to that jurisdiction the Commission filed a notice of motion
    seeking that the proceedings be dismissed as an abuse of process pursuant to
    Order 12 Rule 40 of the National Court Rules.

    18. Quite apart from the Court Rules, both the National and Supreme Courts
    have an inherent power to intervene at any stage of a proceeding to prevent an
    abuse of their process: see Somare v. Manek at paragraph 13. This Court in
    Anderson Agiru v. Electoral Commission and the State (2002) SC687 described
    the power in the following terms (emphasis added):

    “[T]he court’s inherent power is its authority to do all things

  • Page 10 of 25

  • that are necessary for the proper administration of justice. Such
    inherent power consists of all powers reasonably required to
    enable the courtto performefficiently its judicial functions and
    to protect its dignity and integrity.”

    19. In Telikom (PNG) Ltd v. Rava (2018) SC1694 the Supreme Court
    dismissed as an abuse of process an application for the review of a National
    Court decision brought pursuant to s.155(2)(b) of the Constitution in
    circumstances where the National Court decision had previously been appealed
    and dismissed for want of prosecution. In doing so the Supreme Court applied
    the reasoning of the Court in Jacob Popuna v Ken Owa (2017) SC1564
    (emphasis added):

    “17. In Pokia v Yallon (2014) SC1336 the Supreme Court at[20]
    stated:
    ‘An abuse of process will exist if a plaintiff commences more
    than one proceeding concerning the same cause of action. Such
    an abuse can be committed when two proceedings are conducted
    simultaneously regarding the same cause of action (Telikom
    PNG Ltd v ICCC (2008) SC906) or when the plaintiff loses one
    proceedings then comes back to court for a “second bite at the
    cherry” to prosecute the same cause of action (Anderson Agiru v
    Electoral Commission (2002) SC687).’

    18. In our view, the processes of this Court have been improperly
    used by the applicants. As Gavara-Nanu, J noted in Michael
    Wilson v Clement Kuburam (supra) at [25]:

    ‘The types of abuses of process may vary from case to case
    but to establish an abuse of process there must be evidence
    showing that the processes of the court have been
    improperly used; or have been used for an improper
    purpose; or have been used in an improper way; or that
    such abuse of process have resulted in the right of the
    other party being denied, defeated or prejudiced: National
    Executive Council v. Public Employees Association [1993]
    PNGLR 264 and The State v. Peter Painke [1976] PNGLR
    210.’”

    20. Whilst the power is most often invoked to stop proceedings that have
    been instituted improperly, it is also well established that the circumstances
    which might give rise to an abuse of process cannot be restricted or strictly
    defined. As the Supreme Court went on to make clear in Telikom v. Rava, per
    Hartshorn J at paragraph 21:

  • Page 11 of 25

  • “[I]t is not necessary that there has to be more than one
    proceeding filed concerning the same cause of action
    simultaneously for an abuse of process to be constituted…. To
    emphasise that the kinds of circumstances in which an abuse of
    process may arise are not closed… I reproduce the following
    classic statement of Lord Diplock in the House of Lord’s decision
    of Hunter v. Chief Constable of the West Midlands Police and
    Others [1982] AC 529:

    ‘This is a case about abuse of the process of the High
    Court. It concerns the inherent power which any court of
    justice must possess to prevent misuse of its procedure in a
    way which, although not inconsistent with the literal
    application of its procedural rules, would nevertheless be
    manifestly unfair to a party to litigation before it, or would
    otherwise bring the administration of justice into
    disrepute among right-thinking people. The circumstances
    in which abuse of process can arise are very varied; ………
    It would, in my view, be most unwise if this House were to
    use this occasion to say anything that might be taken as
    limiting to fixed categories the kinds of circumstances in
    which the court has a duty (I disavow the word discretion)
    to exercise this salutary power.’”

    21. Similar statements have also been made in other jurisdictions. In
    Batistatos v. Roads and Traffic Authority of NSW (2006) 226 CLR 256 Gleeson
    CJ, Gummow, Hayne and Crennan JJ of the High Court had regard to the
    development of the doctrine in Australia and said at paragraphs 14 to 15
    (emphasis added):

    “In Ridgeway v The Queen, Gaudron J explained:

    ‘The powers to prevent an abuse of process have
    traditionally been seen as including a power to stay
    proceedings instituted for an improper purpose, as well as
    proceedings that are ‘frivolous, vexatious or oppressive’.
    This notwithstanding, there is no very precise notion of
    what is vexatious or oppressive or what otherwise
    constitutes an abuse of process. Indeed, the courts have
    resisted, and even warned against, laying down hard and
    fast definitions in that regard. That is necessarily so. Abuse
    of process cannot be restricted to ‘defined and closed
    categories’ because notions of justice and injustice, as

  • Page 12 of 25

  • well as other considerations that bear on public
    confidence in the administration of justice, must reflect
    contemporary values and, as well, take account of the
    circumstances of the case…’

    Earlier, in Rogers v The Queen, McHugh J observed:

    ‘Although the categories of abuse of procedure remain
    open, abuses of procedure usually fall into one of three
    categories: (1)the court’s procedures are invoked for an
    illegitimate purpose; (2)the use of the court’s procedures
    is unjustifiably oppressive to one of the parties; or (3)the
    use of the court’s procedures would bring the
    administration of justice into disrepute.’

    His Honour added:

    ‘Many, perhaps the majority of, cases of abuse of procedure
    arise from the institution of proceedings. But any
    procedural step in the course of proceedings that have
    been properly instituted is capable of being an abuse of
    the court’s process.’

    To that it should be added that the power to deal with procedural
    abuse extends to the exclusion of particular issues which
    are frivolous and vexatious. Further, the failure to take, as well
    as the taking of, procedural steps and other delay in the
    conduct of proceedings are capable of constituting an abuse of
    the process of the court.”

    22. We agree with those observations and add that when determining whether
    to exercise its power to prevent an abuse of process, the Court should have
    regard to the full facts and circumstances of the case, the prejudice to each of
    the parties and the need for public confidence in the administration of justice.
    As the authorities above make it clear, this power exists to enable the court to
    protect itself from abuse and thus safeguard the administration of justice. In the
    words of Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos “that
    purpose may transcend the interest of any particular party to the litigation”.

    23. In this case, the learned primary judge was entitled, indeed obligated, to
    have regard to the entire history of the proceedings in determining the
    application before her. That history showed that almost nine years had passed
    since the Commission had referred the matter to the Public Prosecutor. The
    Appellant had not appealed the decision of Hartshorn J dismissing leave for

  • Page 13 of 25

  • judicial review but instead had waited five months before bringing OS No 2 and
    only did so after the Public Prosecutor had requested the Chief Justice to
    establish a tribunal. The Appellant had been quick to appeal against Kariko J’s
    decision refusing leave to bring OS No 2, doing so in a matter of days to
    restrain the Tribunal from convening, but had subsequently dragged his feet.

    24. Moreover, almost eight years had lapsed since the decision in Pruaitch
    SC No 2 (2010) remitting the proceedings back to the National Court for
    hearing and yet the Appellant had still to bring his matter to trial. Exclusive of
    the present one, the Appellant had brought 4 appeals against interlocutory
    decisions of the National Court, the resolution of which inevitably added to the
    length and delay of proceedings, and the Appellant had then been slow to act
    once those appeals were determined. The Appellant had taken 6 months to file a
    notice of discovery following the Supreme Court decision in Pruaitch SC No 3
    (2012). When his application was refused, the Appellant took almost 4 months
    to do something against that decision. When that appeal was subsequently
    dismissed, the Appellant took a further 8 months to put on a motion seeking the
    referral of two questions to the Supreme Court for Constitutional interpretation.

    25. Against this background of piecemeal interlocutory applications, multiple
    appeals and extended delays, the learned primary judge found that when taken
    as a whole, the conduct of the proceedings constituted an abuse of process, the
    effect of which was to bring the Leadership Code process to a “standstill”.This
    finding was clearly open to her Honour on the facts. Not only did the
    unreasonable delay frustrate the Leadership Code process but the Respondents
    had also demonstrated that the lengthy passage of time, during which at least
    one witness had died, meant that serious prejudice has been caused by the
    Appellant’s delay. In the meantime, the Appellant’s substantive rights remain
    protected pending determination by the Leadership Tribunal. Furthermore this
    is a case which threatens “to bring the administration of justice into disrepute
    among right thinking people”. As has been said many times, proceedings under
    the Leadership Code by their very nature must be administered effectively and
    speedily to ensure good governance and public confidence in the administration
    of government. To allow these proceedings to continue would be an affront to
    the very purpose of the Leadership Code and those whom it is intended to
    protect, the people of Papua New Guinea.

    26. Adopting the language of the Supreme Court in Curtain Bros, we are not
    satisfied that, in exercising the discretion to dismiss the Appellant’s proceedings
    as an abuse of process, the learned primary Judge was clearly wrong, or that an
    identifiable error occurred in the exercise of discretion. Further, we are not
    satisfied that her Honour’s resulting judgment or order was “unreasonably or
    plainly unjust” such that an error could be inferred. Hence we find no error of
    law or fact or mixed fact and law. On this basis alone we would dismiss the

  • Page 14 of 25

  • entire appeal.

    Premature and an abuse of process

    27. On a separate but related issue, the primary judge also found that the
    proceedings were an abuse of process for being premature. In Somare v. Manek
    the Court held that applications to intervene in proceedings brought under the
    Leadership Code prior to the Tribunal hearing are an abuse of the Court’s
    process, and should be declined by the Court without exception in the public
    interest. There the Court at paragraphs 58 to 59 said (emphasis added):

    “[T]he interest of justice and the need to allow for the due
    process of the law to take its proper course for the greater good
    of society will be better served by the superior courts, that is the
    National Court and or the Supreme Court as the case might be,
    maintaining the age old tradition of not intervening. This should
    be without any exception because as this Court said in SC Ref
    No. 3 of 2005, all issues concerning both the process and the
    substance can be taken up as a preliminary point when the
    proper court or the tribunal assumes jurisdiction and is seized
    of the matter. If after that process, the court or the tribunal
    finds for the accused or the alleged offender that could in
    appropriate cases, form the foundation for appropriate
    remedial actions as highlighted by this Court in Pato’s case.
    An intervention by the superior courts allows for instance,
    stopping the process only to restart it again. By then, the
    freshness of the evidence, availability of witnesses and interest in
    seeing justice being done gets lost and ultimately justice is not
    served. Justice can only be done without much delay and all
    steps that need to be taken being taken in a timely and orderly
    fashion. Otherwise, the converse of that is true. Justice delayed
    is justice denied with those who seek to delay justice ending up
    gaining. If those who are accused or implicated have nothing to
    hide they would readily allow the process to take its proper
    course. …Most of the harm and damage is caused by people who
    choose to take all sorts of unnecessary issues with the process,
    without merit most of the time, which results in unnecessary
    costs and delay. Usually such steps are taken to divert attention
    from the real issues.”

    28. The reasoning in Somare v. Manek was adopted by the five member
    bench of the Supreme Courtin Wartoto v The State (Injia CJ; Sakora, Kirriwom,
    Kandakasi, Davani, JJ (2015) SC1411 for the purpose of holding that it would
    be an abuse of process for an accused person to resort to any other means, even

  • Page 15 of 25

  • s.155(4) of the Constitution, to challenge charges against him without first
    exhausting the criminal justice process.

    29. The Supreme Court reached a similar conclusion in Pruaitch SC No
    4(2017) when dismissing the appeal against a decision refusing discovery in the
    same OS No 2 proceedings now before us. In doing so the Court held that the
    entire proceedings were premature, and that a cause of action arises only once a
    Leader has been found guilty and penalised by a Leadership Tribunal.In other
    words,the Constitutional process under the Leadership Code should be
    completed before any challenge may be brought against that process, including
    decisions made by the Commission, the Public Prosecutor or the Tribunal. At
    paragraphs 15 to 20 the Court said (emphasis added):

    “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.

    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 no cause for
    concern if he is found not guilty.

    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.

    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

  • Page 16 of 25

  • by private law cause of action.

    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.

    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. The Appellant has continued to be a Member of
    Parliament in the last eight years. If he loses in the coming elections, the
    Commission’s investigations and resources spent on the investigation
    would be a waste of public funds.”

    30. It is clear from the face of the primary judge’s decision that her Honour
    considered Pruaitch SC No 2 (2010) in light of the subsequent decisions in
    Somare v. Manek and Pruaitch SC No 4 (2017) in finding that the proceedings
    were premature. That finding was clearly open to her and she found
    accordingly.

    31. Pruaitch SC No 2 had the effect of reinstating the Appellant’s substantive
    cause of action but there was nothing in that decision that precluded the
    application of later Supreme Court authorities that required as a procedural
    matter that such a claim should not be brought until after the Tribunal’s hearing.

    32. Furthermore, the response of theAppellantwas simply to ignore those
    decisions. There is no evidence to suggest that he raised them with the National
    Court at an early opportunity, or at all, to seek directions.

    33. In these circumstances, we find no error of fact or law or of mixed fact
    and law which warrants correction by this Court. Accordingly, we would
    dismiss appeal grounds 1 and 4.

    GROUNDS 2AND 3: REFERRAL PURSUANT TO S. 18
    CONSTITUTION

    34. Consequential on our findings above, the Appellant’s appeal against the
    decision of the learned primary judge in refusing his motion in OS No 2 to refer
    questions to the Supreme Court for interpretation pursuant to s. 18(2) of the
    Constitution should automatically fall away.

  • Page 17 of 25

  • 35. Nevertheless, we consider it appropriate to examine the questions raised
    in the appellant’s notice of motion. Section 18 of the Constitution provides:

    “18. Original interpretative jurisdiction of the Supreme Court.
    (1) Subject to this Constitution, the Supreme Court has original
    jurisdiction, to the exclusion of other courts, as to any question
    relating to the interpretation or application of any provision of a
    Constitutional Law.
    (2) Subject to this Constitution, where any question relating to
    the interpretation or application of any provision of a
    Constitutional Law arises in any court or tribunal, other than
    the Supreme Court, the court or tribunal shall, unless the
    question is trivial, vexatious or irrelevant, refer the matter to the
    Supreme Court, and take whatever other action (including the
    adjournment of proceedings) is appropriate.”

    36. The principles to be applied when considering whether a question for
    referral arises are well settled. A question of both interpretation and application
    must arise: per Somare v. Manek at paragraph 89, applying Kapi DCJ in
    Patterson Lowa (Supra) (emphasis added):

    “[I]t is now well settled law that, a question of interpretation and
    application of a constitutional law may arise in either of two
    ways as highlight by Kapi DCJ. The first is in cases where
    factual circumstances giving rise to a question of a
    constitutional law interpretation and application arises. The
    second is where a provision of a statute appears to be in conflict
    with a constitutional law in its interpretation and application. In
    either case, there must be an argument over two things: (1)
    interpretation of a constitutional law provision; (2) its
    application. Both must arise in order to qualify for a case of an
    issue arising in relation to the interpretation and application of
    a constitutional law.”

    37. Where a question of interpretation and application of a Constitutional law
    arises in any Court other than the Supreme Court, or before a tribunal, the Court
    or tribunal in which the question arises must refer the question to the Supreme
    Court, provided however that the lower court or a tribunal is satisfied that the
    question is not trivial, vexatious or irrelevant: see s. 18(2) of the Constitution.

    38. On the face of it, the Appellant’s notice of motion dated 12 February
    2018 has failed to plead with precision the facts upon which he relies to invoke
    s. 18 of the Constitution. A complete copy of OS No 2 itself, out of which the
    notice of motion arises, is not contained in the Appeal Book. It is unclear if the

  • Page 18 of 25

  • facts are pleaded therein. However, we note “Facts as contended” are set out
    over seven pages in the Appellant’s submissions in the lower court.

    39. As observed in Somare v. Manek at paragraphs 101 and 102, it is
    incumbent upon an applicant to plead succinctly the facts upon which the
    questions arise. Those facts must have been established in the lower
    proceeding. They are not simply matters for submission but are essential for
    laying the foundation of the referral under s. 18(2) of the Constitution. On this
    basis alone the Appellant’s motion was defective.

    40. The two questions the Appellant sought to raise were, whether on a
    proper interpretation and application of Section 20(3) and (4) of the OLDRL:

    1. The Ombudsman Commission is obligated to afford the leader the
    right to be heard after the completion of the investigation, and
    before referral;

    2. The Ombudsman Commission was obligated to afford the leader a
    further right to be heard after conducting further investigation after
    October 2006 and before making the referral.

    41. It is well settled and clear law that a leader is entitled to a right to be
    heard pursuant to s. 20(3) of the OLDRL, which provides:

    “PROCEEDINGS OF THE COMMISSION.
    (1) Every investigation by the Commission or other authority
    under this Law shall be conducted in private.
    (2) The Commission or other authority may hear or obtain
    information from any person who the Commission considers can
    assist and may make whatever inquiries it thinks fit and shall,
    before taking action under Subsection (4) notify the person
    whose conduct is being investigated.
    (3) Nothing in this Law compels the Commission or other
    authority to hold any hearing and no person, other than the
    person whose conduct is being investigated is entitled as of right
    to be heard by the Commission.
    (4) If, after an investigation, the Commission is of the opinion
    that there is evidence of misconduct in office by a person to
    whom this Law applies, it shall refer the matter to the Public
    Prosecutor for prosecution by him before the appropriate
    tribunal.”

    42. It is our view that in general terms, whether the obligation has been met is
    a question to be determined on the particular circumstances of each case and not

  • Page 19 of 25

  • a matter requiring Constitutional interpretation and application. It is only a case
    of the latter.

    43. The obligation on the Commission in respect of the right to be heard is
    well settled. The Commission is to notify a leader of the fact that allegations
    have been made against him; setting out the substance of the charges; such that
    he is able to understand their nature and to inform him of his right to be heard in
    respect of each of them; and to accord him that right if he chooses to exercise it:
    per Kapi DCJ in Nilkare v Ombudsman Commission of Papua New Guinea
    [1999] PNGLR 333 (Amet CJ, Kapi DCJ (as he then was), Los J and Injia JJ (as
    the latter then was).

    44. The key issue is whether the leader has a meaningful opportunity to
    exercise that right. As Amet CJ said in Nilkare when setting out some
    guidelines for determining whether a person has been given such an
    opportunity:

    “It must be understood of course that these are by no means
    exclusive and exhaustive. Some variation and modification to
    these must necessarily be permitted, depending on the varying
    circumstances of each particular case. But I think as a general
    principle some of these are sufficiently developed in the body of
    judicial precedents from the common law jurisdictions that we
    have adopted and have relied upon in many cases under these
    general heading principles of natural justice. The requirements
    of the right to be heard could be deemed complied with if the
    following procedures were adopted:

    1. Notice is given of the nature and substance of the
    allegations made against the leader.
    2. Reasonable opportunity is given to the leader to
    respond, either in writing or in person before the
    Commission, if the leader so elects.
    Particulars and clarification of the allegations ought to be
    given if the leader requests the same in order that his right
    to be heard in respect of the allegations are to be
    considered adequate.
    3. Any relevant documents are to be furnished to the
    leader if requested, to enable the leader to fully respond to
    the allegations.
    4. It would not be appropriate to oblige the Commission
    to hand-over all documents concerning the leader at the
    time it gives notice of a right to be heard. By the same
    token, if there are particulars and documents which are

  • Page 20 of 25

  • relevant and vital to a fuller and better understanding of
    the nature of the allegations, by the leader, in order that
    his explanations thereto would be full and complete to
    enable the Commission to make the determination as to
    whether or not there is a prima facie case, then it is
    incumbent upon the Commission to ensure that the leader
    is fully aware of the existence of such materials and
    documents. If the leader requests copies of the same then
    they should be made available to him. It would not be
    appropriate for the Commission to withhold such
    information with the presumption that they should be used
    in the prosecution of the allegations before the Leadership
    Tribunal.”

    45. The Appellant relies on the decision of Micah v. Lua (2015) SC1445. In
    that case between August 2014 and early 2015 the Ombudsman Commission
    had requested information from the former managing director of Independent
    Public Business Corporation to provide (the Grand Papua Hotel) information
    and/or documents in relation to the allegation of the Appellant using his office
    to gain a benefit in hotel accommodation. Meanwhile on 16th February 2015 it
    wrote to Mr Alex Wilson, the General Manager of the Grand Papua Hotel
    requiring him to provide information and/or documents in relation to the same
    allegation. The further information sought from Mr Wilson included whether
    the Appellant had accommodated family members at the hotel and who it was
    that paid for the accommodation and laundry. It was towards the end of
    February 2015 that both gentlemen provided information and documents to the
    Ombudsman Commission. This was 6 months after the Appellant had provided
    his response to the allegations on 15th August 2014. The information and
    documents were not given to the Appellant for his response.

    46. The Supreme Court held that the trial judge erred in refusing leave for
    judicial review on the basis that there was an arguable case that the appellant
    had a right to be heard on the further information received in relation to the
    allegations against him and thus whether there was a proper and valid referral
    by the Commission. It said that it was arguable that the phrase “If, after the
    investigation” in s. 20(4) of the OLDRL could mean that all of the evidence
    gathering must be complete and given to the appellant to respond to before a
    decision is made by the Commission.

    47. The Appellant argues that the same questions of interpretation and
    application arise here. We do not agree. The facts are distinguishable from
    those in Micah. There were no further investigations, and no new information
    obtained by the Commission in this case. The essential facts are apparent from
    the affidavit material. The Commission wrote to the Appellant outlining 11

  • Page 21 of 25

  • categories of allegations, including an allegation that he had improperly
    received operational cost allowances for a support vehicle when the vehicle was
    already fully maintained by the State. The Appellant gave a detailed response,
    in which he explained that upon realising he had made an error he had repaid
    K20,000 and asked the Department to advise him of the balance, if any, still
    outstanding. Mr Pouru’s letter to the Commission confirmed this and that the
    Appellant had been informed of the remaining outstanding amounts. That letter
    was copied to the Appellant.

    48. Even if we are wrong, and on those facts a question of interpretation and
    application arises on a technical basis, the question in our view is a trivial one.
    It is clear that the Appellant was notified of the 11 allegations that had been
    made against him, and the substance of those allegations, such that he was able
    to understand their nature. He was notified of his right to be heard in respect of
    each of them, and he exercised that right both verbally and in a detailed written
    response.

    49. Moreover the Appellant has waited eight years to raise these questions
    which arise out of the same facts he complained of in OS No 1 in 2009. He had
    the opportunity to raise the questions then but he failed to do so until now in OS
    No 2. The questions are a vexatious attempt to further delay the Tribunal from
    substantively hearing the allegations which formed the basis for the
    establishment of the Tribunal.

    50. I f a n y q u e s t i o n o f i n t e r p r e t a t i o n a n d a p p l i c a t i o n o f a
    Constitutionalquestion did genuinely arise, these should have been raised by the
    Appellant before theTribunal. If the Appellant did not succeed then he was
    entitled to bring those matters to the National Court via judicial review at the
    conclusion of the proceedings before the Tribunal and not at any time before
    then. Of course, if he was still unsatisfied at the judicial review stage before the
    National Court, he has the opportunity to come to this Court on appeal at the
    end of the National Court review process. We note that the Supreme Court
    already made this point very clear in Somare v. Manek, at paragraph 133 in the
    following terms:

    “Going by the overall purpose and scheme of the provisions on
    leadership under the Constitution as well as the OLDRL as
    discussed above, it was proper and appropriate for Sir Michael
    to raise all questions concerning the Ombudsman investigations
    into possible breaches of the Leadership Code, through to the
    appointment of the leadership tribunal, only at the tribunal as
    clarified and reaffirmed by this Court’s decision in SCR No. 3 of
    2005: Reference by The Ombudsman Commission of Papua New
    Guinea (supra). If he did not succeed at the leadership tribunal

  • Page 22 of 25

  • level, it was open to him to challenge that through a judicial
    review to the National Court and if still not satisfied, to the
    Supreme Court on appeal. That was the appropriate and correct
    forum and processes available to him.”

    51. In Nilkare the Supreme Court found significant procedural errors
    established on the part of the Commission, in particular the referral of four new
    charges on which the leader had not been given the right to be heard.
    Furthermore the Supreme Court found there were grounds for suspecting bias
    on the part of the Commission. Despite that, we note, the Supreme Court held
    (emphasis added):

    “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
    no doubt prepare his defence at the tribunal hearing. In
    relation to bias, again he will be able to defend all the charges
    before the Tribunal. Any bias by the respondent will not have any
    impact on the Tribunal, which is differently constituted…

    Since the decision of the Commission is not in conclusive or
    determinative of any of the allegations, the balance of justice
    and convenience both in the interest of the people of Papua 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.”

    52. As have subsequent decisions of this Court, we endorse the decision in
    Nilkare as sound. It should follow therefore from Nilkare that even if there has

  • Page 23 of 25

  • been some irregularity or failure to provide natural justice which taints a referral
    and establishment of leadership tribunal, it does not spell an end in itself.
    Instead a leader who is affected by such a process has the right to defend
    himself at the tribunal. If unsuccessful there, he may utilise the judicial review
    process once the tribunal has come to a final decision and if also finally
    unsuccessful there then the appeal process.

    53. In this case the Appellant has failed to demonstrate any prejudice. In his
    affidavit the Appellant states that he paid the outstanding balance a few days
    later. He says in his affidavit that if the Commission had asked him about Mr
    Pouru’s letter he would have informed it of that fact. There is nothing
    preventing the Appellant from putting this claim and his evidence before the
    Leadership Tribunal, whose task it is to enquire into the substantive merits of
    the case and come to a decision based on evidence produced before it. What is
    important for our purpose is that the Appellant in his capacity as a leader was
    made aware of and given a meaningful opportunity to respond to the allegations
    themselves, before the decision to have him referred.

    54. The Appellant has now had more than ample opportunity to consider the
    charges against him and the material provided in Mr Pouru’s letter. The
    Appellant may well dispute all of the allegations raised against him by the
    Commission’s referral. That is his right and those are substantive matters to be
    determined by the Leadership Tribunal.

    55. It has now been 10 years since the Commission referred the matter to the
    Public Prosecutor. The Appellant has successfully brought time, delay and
    prejudice to the Ombudsman and the people of PNG in that a witness has since
    died and others may have changed employment or addresses and even if they
    are readily available, may have lost memory of the various matters forming the
    foundation for the referral, something this Court spoke clearly of in Somare v.
    Manek at paragraphs 51 and 55. We also note with concern that those who
    constituted the Leadership Tribunal to inquire into and make a decision on each
    of the allegations may no longer be available to now constitute the Tribunal and
    discharge its duties. In these circumstances the interests of justice clearly call
    for the matter to proceed to a Leadership Tribunal hearing without any further
    delay to avoid any further prejudice to justice and the people of PNG and for the
    Tribunal to finally determine the allegations on its merits. The Appellant will of
    course have the opportunity to present his case in full before the Tribunal.

    CONCLUSION

    56. The Appellant has exhausted, albeit improperly and irregularly, all
    judicial review and claims of Constitutional interpretation and other process
    both before this Court and the National Court challenging the Commission’s

  • Page 24 of 25

  • decision to referhim to the Leadership Tribunal. Leave for seeking judicial
    review pursuant to Order 16 was refused in 2009.The current proceedings
    brought pursuant to ss. 23, 155(4) and 217(b) of the Constitution have now been
    dismissed as an abuse of process. The matter must now proceed to a Leadership
    Tribunal and the Tribunal must be allowed to come to a decision on the
    substantive merits of each of the allegations pending before it. This is necessary
    and dictated by the matters discussed and forming the foundation for the
    decision in this judgment. In short, a hearing and determination by the
    Leadership Tribunal of each of the allegations now pending hearing is necessary
    given that all conceivable preliminary issues have been raised and determined in
    the various National and Supreme Court proceedings to date. For clarity what
    this means is this: the Appellant will not be at liberty to raise the same
    preliminary issues that have been raised and determined by the various National
    and Supreme Court decisions. The Appellant may be at liberty to raise any new
    preliminary matters but any judicial review and or appeal against any
    preliminary decision will have to wait until there is a final decision on each of
    the allegations pending before the Leadership Tribunal.

    57. Finally, given the lapse of time which has also adversely affected the
    Leadership Tribunal, the Chief Justice will need to have it reconstituted to
    enable it to commence its inquiry into the allegations against the Appellant
    without any further delay.

    Orders

    58. For the above reasons we conclude that in all the circumstances of this
    case the Appellant has failed to show that the learned trial judge erred in factor
    in law or on a question of mixed fact and law.Accordingly, we make the
    following orders:

    (1) The appeal is dismissed.
    (2) The referral pending before the Leadership Tribunal must now
    proceed to a hearing and final determination on its merits by the
    Leadership Tribunal.
    (3) The Chief Justice shall take all steps necessary to have the
    Leadership Tribunal reconstituted to enable it to commence its inquiry
    into the allegations against the Appellant as a matter of urgency.
    (4) The parties are restrained from returning to the National Court or
    the Supreme Court on any preliminary issue until the Leadership
    Tribunal has finally come to a decision on each of the allegations
    constituting the referral pending before the Leadership Tribunal.

  • Page 25 of 25

  • (5) The Appellantshall pay the Respondents’ costs of and incidental to
    the appeal, such costs to be taxed if not agreed.

    ________________________________________________________________
    Young & Williams Lawyers: Lawyers for the Appellant
    M S Wagambie Lawyers: Lawyers for the Second and Fourth
    Respondents
    In House Counsel: Lawyers for the First Respondent