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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