Koaba v Peter [2024] PGNC 223; N10896 (12 July 2024)

N10896

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 156 OF 2023 [IECMS]

BETWEEN:
FRANCES KOABA
Plaintiff

AND:
HON RUFINA PETER MP, in her capacity as Governor for Central Province and Chairperson of PEC Central Province
First Defendant

AND:
PROVINCIAL EXECUTIVE COUNCIL
Second Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND:
HON JAMES MARAPE PM, in his capacity as Chairman of National Executive Council
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:
EDWARD KILA
Sixth Defendant

Waigani: Purdon-Sully J
2024: 1^st & 12^th July

JUDICIAL REVIEW- Practice and Procedure – Objection based on Order 16 Rule 13 (13)(2) (a) and (b) – Application dismissed as abuse of process – Frivolous and/or vexatious – Litigants responsibilities – Lawyers responsibilities – Use of rules of Court otherwise as intended
Cases Cited:

Papua New Guinea Cases
PNG Forest Products Ltd v Minister for Forests [1992] PNGLR 85
Wartoto v State [2015] PGSC 1; SC1411
Tai v Baker [2023] PGNC 482
Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8
Takori v Yagari [2008] SC905
Kerry Lerro trading as Hulu Hara Investments Ltd v Stagg & Ors [2006] N3950
JV PNG Constructions Limited v Samson [2022] SC2224
Agiru v Electoral Commission [2002] SC687
Innovest v Pruaitch [2014] N5949

Overseas Cases
Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13

Legislation
National Court Rules, Order 16 Rule 13(13)(2)(a) & (b)
Public Service (Management) Act 1995, ss 60A, 60B, 60C

Counsel
S Tadabe, for First, Second and Sixth Defendants
C S Raurela, for Plaintiff
M Narokobi, for Third, Fourth and Fifth Defendants

DECISION

12^th July 2024

1. PURDON-SULLY J: This is the Court’s decision on a Notice of Motion filed 12 March 2024 by the First, Second and Sixth Defendants seeking the following orders:
   1. Pursuant to Order 16 Rule 13(13)(2)(a) of the National Court Rules, s155(4) of the Constitution and the Court’s inherent powers, the proceedings be dismissed for being estopped by the doctrine of res judicata.
   2. .........
   100. Further and or in the alternative, pursuant to Order 16 Rule 13(13)(2)(a) & 2(b)(a) of the National Court Rules, s155(4) of the Constitution and the Court’s inherent powers, the proceedings be dismissed for failure to disclose a reasonable cause of action, being frivolous and vexatious and an abuse of Court process.
   4. Costs.
2. The State supports the orders sought.
   
3. The Plaintiff seeks dismissal of the Notice of Motion with costs.

BACKGROUND

4. The relevant facts are not controversial.
5. The Plaintiff was appointed Provincial Administrator of Central Province Administration (PA) by the Third Defendant on 12 January 2022 for a period of four (4) years.
6. The Plaintiff executed an Employment Contract with the State on the 12 January 2022 for a period of four (4) years (Contract).
7. On 22 August 2023 the First Defendant levelled sixteen (16) disciplinary allegations against the Plaintiff giving him seven (7) days to respond.
8. The Plaintiff responded by letter dated 22 August 2023, delivered on 31 August 2023.
9. On 5 September 2023 the Second Defendant convened and in Decision No 059/23 Meeting No PG 09/2023 suspended the Plaintiff (September Decision).
10. The First Defendant thereafter initiated a process under the Public Services Management Act (PSM) to write to the Public Service Minister to consider the allegations and the Plaintiff’s response to establish if there was a case to answer by the Plaintiff which warranted charges and further investigation by the Public Service Commission (PSC).
11. On 12 September 2023 the Plaintiff initiated judicial review proceedings (OS No 294 of 2023) challenging the Second Defendant’s September Decision to suspend him.
12. On 4 October 2023 the Plaintiff was granted interim restraining orders and returned to his role as PA.
13. On 13 October 2023, the PSC determined there was a prima facie case for the Plaintiff to answer in respect of fourteen (14) of the sixteen (16) allegations levelled against him and made the following recommendations:
    1. That the Governor and the PEC take note of the content of this Report;
    2. That there is a prima facie case constituting grounds of revocation of the appointment under Clause 19.1 (a), (d) and (e) of Mr Koaba’s Contract of Employment relating to the fourteen (14) of the sixteen (16) allegations he has responded to;
    3. That Mr Koabe be suspended from the Office of Provincial Administrator, Central Provincial Administration forthwith.
14. On 31 October 2023 the First Defendant filed an application to dismiss the proceedings (OS No 294 of 2023) for being incompetent.
15. On 14 November 2023 Carey J dismissed the proceedings OS No 294 of 2023 with costs. There was no appeal to that decision.
16. On 14 November 2023, in line with the PSC recommendations, the Second Defendant convened to deliberate on the recommendations made by the PSC and in decision No 061/23 in Meeting No PG 012/2023 recommended that the Third Defendant suspend the Plaintiff as PA and for the balance of the disciplinary process to ensue.
17. On 16 November 2023 before the First Defendant could convene to decide on the Second Defendant’s recommendations, the Plaintiff sent a letter to the First Defendant in the following terms:

Date: 16th November 2023

Rufina Peter, MP

Governor Central

Central Provincial Government

Free Mail Bag Service

PORT MORESBY

National Capital District

Dear Governor,

NOTICE OF MY RESIGNATION AS PROVINCIAL ADMINISTRATOR OF CENTRAL PROVINCIAL ADMINISTRATION

I write to your Office as the Chair to the Provincial Executive Council (PEC) of my intention to resign from my position as the Provincial Administrator and therefore submit my three (3) month notice as required.

It has been your intention since your election to replace me from the position and I will honourably resign the position as it is not my birth right but rather a public office for the people of Central Province.

Secondly, I cannot continue to work in an environment where political interference is not and micromanagement is becoming a norm of the day as there is no clear demarcation between politics and bureaucracy and the co-existence of a dual public service structure both at the political and administration level.

Given the above I am regrettably requesting that my resignation be approved.

Thank you and look forward to your favourable consideration in due course.

Yours sincerely,

FRANCIS KOABA, LM

Copy: Taies Sansan

Secretary - DPM

18. On the same date, the 16 November 2023, the Second Defendant also wrote to the Secretary of Department of Personnel Management in the following terms:

Date: 16th November 2023

Ms Taies Sansan

Secretary

Department of Personnel Management

P O Box 519

WAIGANI

National Capital District

Dear Governor,

NOTICE OF MY RESIGNATION AS PROVINCIAL ADMINISTRATOR OF CENTRAL PROVINCIAL ADMINISTRATION

I write to your Office to formally notify you of my notice of resignation directed to the Governor of Central Province and her PEC.

For your information the current work environment is no longer conducive for us to coexist and the events of the recent months are all indications of this growing rift between the political arm and the administration.

The grounds of my intention to resign are clearly articulated in my notice (attached) and therefore we appreciate if consideration could be given for redeployment as I still have two (2) full years of my contract. I will leave that to your considered view and that of the National Executive Council to consider.

Once again let me thank you for the cordial working relationship we’ve endured in my leadership of the Central Provincial Administration in the last four (4) years and also in the service of the then Marape-Basil Government and the current Marape-Rosso Government.

Thank you and I look forward to your favourable consideration in due course.

Yours sincerely,

FRANCIS KOABA, LM

Copy: Rufina Peter, MP

Governor Central

19. There is a dispute between the parties as to the proper characterisation of those letters, the Defendants contending that they were letters of resignation by the Plaintiff as PA and the Plaintiff asserting the letters of resignation were in draft ( “...in draft form and passed to the Secretary of PSM to make correction and return it to me before I furnish an edited copy to the Governor” and “Instead of retuning a copy with comments on me, the Secretary of DPM forwarded the same copy of the draft letter to the Governor for the Central Province Hon Ms Peter.”.^[1]
20. On 27 November 2023 the Third Defendant convened and deliberated on the issue of the Plaintiff’s resignation and the Second Defendant’s decision of 14 November 2023. In NEC Decision No 348/2023 dated 27 November 2023 and Gazettal Notice dated 5 December 2023 signed by the Fourth Defendant, the Third Defendant resolved to accept the resignation and appointed the Sixth Defendant as the Acting PA for the interim period (December Decision).
21. On 30 November 2023 the Secretary DPM formally advised the Plaintiff that his resignation had been accepted by the Third Defendant and his appointment as PA revoked.
22. On 13 December 2023 the Plaintiff initiated further judicial review proceedings in OS No 146 of 2023 seeking leave to judicially review the December Decision.
23. On 15 December 2024 the proceedings OS No 146 of 2023 were dismissed in entirety by Carey J for disclosing no reasonable cause of action and for being an abuse of Court process. The Plaintiff was ordered to pay costs. There was no appeal to that decision. Nor was it sought to be set aside as an order made in the absence of the Plaintiff. The Audio Recording and Official Transcript of the hearing is in evidence.
24. On 28 December 2023 the Plaintiff filed the current proceedings again seeking a review of the December Decision.
25. On 29 January 2024 the Plaintiff filed an Amended Statement pursuant to Order 16 Rule 3(2)(a) of the NCR.
26. On 15 February 2024 leave was granted by another Judge of this Court to apply for judicial review. There is a dispute between the parties as to whether this was based on a false representation on behalf of the Plaintiff that the earlier proceedings for leave for judicial review in OS No 146 of 2023 had been withdrawn.

THE ISSUES

27. The issues to be determined in the order addressed in oral submissions are as follows:
    1. Whether the proceedings should be dismissed for failing to disclose a reasonable cause of action, for being frivolous, vexatious and an abuse of process?
    2. Whether the proceedings can be summarily dismissed for being res judicata?
28. Relevant to the first issue is whether the Plaintiff’s letters of 16 November 2023 were a notice of resignation and the effect of same, a question I shall address first.

THE LETTERS OF 16 NOVEMBER 2023

29. It is submitted on behalf of the First, Second and Sixth Defendants that the letters were notices of resignation and the effect of the Plaintiff’s resignation:
    1. rendered enquires or causes of actions initiated by interested parties including the person who resigned as nugatory; and
    2. the Plaintiff’s resignation did not have to be accepted by anyone to become effective.
30. It is submitted on behalf of the Plaintiff that the letters were not notices by the Plaintiff to resign but letters in draft only, the resignation, in any event, not an automatic revocation but a ground for revocation to which the procedures relating to the revocation of appointments of PA’s provided under s 60B of the Public Services (Management) Act 1995 (the PSMA Act) and Clause 15.1 of the Contract apply.
31. Section 60B of the PSMA Act details the procedures relating to the revocation of appointments of Provincial Administrators.
32. Clause 15.1(h) of the Contract provides that the grounds on which the Head of State on the advice of NEC, following a recommendation from the Governor through the Minister of Public Service, based on a resolution of the PEC may revoke the appointment and terminate the Contract of the Plaintiff including resignation on his own accord. Clause 15.9 then provides that where the PA gives notice of resignation following the expiry of a mutually agreed period of notice of not more than 3 months the Head of State on advice may revoke the appointment.
33. The essence of the Plaintiff’s contention is:
    1. He did not formally resign as PA but rather his letter to the Secretary was a draft letter for her comment.
    2. His draft letter was not a formal letter of resignation and as such there was no resignation for the Fourth Defendant to consider and no basis for the Fourth Defendant to revoke his appointment.
    100. His formal resignation must be forwarded to the First Defendant in the first instant and not the Secretary.

Discussion

34. The Plaintiff’s contention that he did not resign in his letters dated 16 November 2023 cannot be accepted for two reasons.
35. Firstly, the Plaintiff did not plead his notice of resignation was a ‘draft’ resignation in his Statement Pursuant to Order 16 Rule 3(2)(a) filed 28 December 2023 or his Amended Statement filed 29 January 2024. It was his case that he resigned under duress. His Statement and Amended Statement at [2.13] and [2.14] are in these terms:

2.13 There was a time, the Plaintiff had given notice to resign to the Governor of Central pursuant to his contract. But that was due to a request from the Secretary of the Department of Personnel Management (DPM) Taies Sansan, who called the Plaintiff by phone that his contract was soon to be revoked by NEC and therefore he had to immediately resign to safe (sic) his reputation.

2.14 The Plaintiff was therefore coerced into giving resignation. It was not his free voluntary resignation decision and therefore will seek to retract that resignation soon.

36. The following observations arise:
    1. In his sworn evidence the Plaintiff makes allegations of wrongdoing against the First, Second and Sixth Defendants in the nature of inter alia financial misappropriation and/or fraud with respect to the First Defendant and Sixth Defendants and unethical and unprofessional conduct on the part of the Secretary. It is trite to say that allegations of that nature are serious. In the present case they are made against a public official and senior public servant. Allegations of that nature should be carefully pleaded with a foundation in evidence. Assertion is not evidence. For example, what criminal charges were laid against the Sixth Defendant arising out of an audit were not proven on the Plaintiff’s own sworn deposition, having been dismissed by a court of law by reason of insufficient evidence.
    2. It is settled law, and fundamental to our adversarial system of justice, that parties should clearly identify the issues in dispute at the outset of their case through their pleadings. The purpose of a pleading is to give such particulars as are necessary to enable the opposite party to identify the case he or she is required to meet. It is only in his Affidavit filed 29 January 2024 in support of his Amended Statement in Support that the Plaintiff asserts that he did not tender his resignation and that his letters were in draft. That deposition however is not pleaded in his Amended Statement filed 29 January 2024. Nor does he plead, as deposed to in his Affidavit filed on 29 January 2024, financial impropriety on the part of the First Defendant as a basis for the Secretary coercing him to resign. On his pleading he resigned on the advice of the Secretary to preserve his reputation.
37. Secondly, the Plaintiff’s contention that his letters were drafts is a proposition at odds with the plain reading of both letters, if not the dictates of common sense. Neither communication was marked ‘draft’ or ‘for discussion purposes only’ or ‘subject to correction’ or “for comment”. There was no written request in the letter or other communication to the Secretary for her comment or correction. The Plaintiff, by virtue of the senior government position he held, was not a commercial innocent. He was a provincial administrator. The letters set out the reason for his resignation in terms that were reflective of his experience as a PA. Both letters were clear. They were meant to convey the Plaintiff’s resignation.
38. The only request made of the Secretary by the Plaintiff, that may have suggested a response by the Secretary, was the Plaintiff’s request for favourable consideration for re-deployment given that his contract had two years to run.
39. Relevantly, the letter to the First Defendant made clear that it was the Plaintiff’s view that he had lost her confidence and that it was her intention to replace him. In giving three (3) months’ notice he also made clear that he could not continue to work in an environment that he viewed as one involving political interference, amongst other complaints. He requested that his resignation be approved. His letter to the Secretary reiterated that the current work environment was not conducive for coexistence and there was a growing rift between the executive and his administration. These were serious matters, raised by Plaintiff, matters that required a timely response on the part of the Defendants, given the importance of his role.
40. At the date of his resignation the Plaintiff was under suspension. While suspension did not necessarily have the effect of him provisionally or temporarily vacating the office of PA and did not necessarily deprive the Plaintiff of his right to salary and other benefits, it did have the effect of suspending the relations between the parties under the Contract. The Plaintiff’s resignation however then brought his Contract to an end. His only obligation thereafter was to work out his notice period, either as given or otherwise determined and receive any salaries, benefits and accrued entitlements owing to him.
41. In light of the sentiments expressed in the Plaintiff’s letters the Plaintiff’s request that the Defendants act on his notice of resignation with expedition can be imputed, the Plaintiff viewing his position as untenable. He was pressing for a favourable consideration to his resignation and redeployment. His appointment was revoked by way of the December Decision.
42. As a consequence of his notice to resign there was no purpose in the First Defendant pursuing any investigative process. They had no authority to do so. The thrust of that process was directed towards a consideration of whether the Plaintiff should be reinstated, with or without caution or whether his Contract should be terminated and he be removed. Having however resigned, the Plaintiff indicated his intention to no longer occupy the office of PA, the then subject of the investigation.
43. Whether or not the provisions of ss 60B and C of the PSMA and/or Clauses 15.1 and 15.9 of the Contract were thereafter followed in actioning his resignation and the inter-relationship of those provisions in the circumstances of resignation, respectfully, is not relevant to a determination as to whether the Plaintiff resigned his office.
44. For the reasons given the Court concludes that the Plaintiff did resign by notice to that effect dated 16 November, 2023, his Contract terminated by such resignation, his employment in the public service thus coming to an end subject to his serving out his period of notice as given or by earlier agreement.
45. I now turn to the issues as earlier identified.

SHOULD THE PROCEEDINGS BE DISMISSED FOR FAILING TO DISCLOSE A REASONABLE CAUSE OF ACTION, BEING FRIVOLOUS, VEXATIOUS AND AN ABUSE OF PROCESS?

46. Order 16 Rule 13(13(2)(a) and (b) of the NCR provides jurisdiction for the National Court to consider an application for summary dismissal including by reason of abuse of process or frivolous and vexatious proceedings or failure to disclose a reasonable cause of action.
47. The relevant principles to apply are well established in this jurisdiction.
48. While the Court should be slow and cautious in the exercise of its discretionary power to dismiss in a summary manner any proceedings before it, the Court has an inherent jurisdiction to protect and safeguard its processes from abuse (PNG Forest Products Ltd v Minister for Forests [1992] PNGLR 85; Wartoto v State [2015] PGSC 1; SC1411).
49. A frivolous claim is one that has no serious purpose or value. It is one that is untenable. It is one that cannot succeed if it proceeds to trial. A vexatious claim is an action that is brought without sufficient grounds to succeed purely to cause annoyance to the other party (Tai v Baker [2023] PGNC 482).
50. A frivolous and/or vexatious claim is an abuse of the Court process, as is the use of Court process to pursue proceedings which disclose no reasonable cause of action (Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8).
51. In Takori v Yagari [2008] SC 905 the Supreme Court (Kirriwom, Gavara-Nanu & Kandakasi JJ) said at [23] with respect to the power to dismiss under Order 12 Rule 40 of the NCR:
    23. ..... The principles built around this provision are now well established. The National Court in Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea extracted the relevant principles from a number of overseas and our own Supreme and National Court judgments (noted in the footnotes) in this way:

" 1. Our judicial system should never permit a plaintiff or a defendant to be ''driven from the judgment seat'' in a summary way, ''without a Court having considered his right to be heard.'' A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.

2. At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3. The object of these rules are therefore ''to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.'' In other words ''the object of the rule was to get rid of frivolous actions.''
4. A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial.
5. A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expense of defending or proving the claim.
6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase ''cause of action''. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the ''form of action''. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.
7. The phrase ''cause of action'' could thus be defined in terms of a legal right or form of action known to law with:

''every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.''

8. A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.
9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
10. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is ''obviously and almost incontestably bad.'' In other words this discretion can be exercised only in cases that ''are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [or defendant] to what he asks'' for.""
52. Applying these principles to the case at hand, it is the December Decision that the Plaintiff sought and was granted leave to judicially review.
53. The relief he seeks is the quashing of the revocation of his appointment as PA and his reinstatement to the position of PA and damages. His claim to that relief is untenable given his notice of resignation on 16 November 2023 which rendered the relief sought nugatory.
54. The facts and legal elements to prove or establish his claim for that relief by reason of his appointment as PA having been unlawfully revoked is not supported on his pleadings. This is because he resigned and his right to hold the office of PA came to end. He cannot be put back to an office he once held without re-appointment.
55. The Court thus finds the Plaintiff’s claim to be a frivolous claim, one bound to fail if it proceeds to trial.
56. The Court further finds that his claim is vexatious, a sham that cannot succeed, a claim that will put the Defendants to unnecessary expense in defending it. It is a conclusion underscored by the insufficiency of the Plaintiff’s pleadings and his irreconcilable evidence in his affidavits filed 28 December 2023 where he tells the Court he resigned (see [2] – [5]) and his further affidavit filed 29 January 2024 where he categorically denies he resigned (see [3] to [12]), affidavits sworn and filed a month apart. What the Plaintiff has attempted to do in the latter document is to cure a defect that the act of his resignation presented for his claim by the deposition in an additional affidavit to the effect that his resignation was a draft only, a fictitious proposition not supported on the pleadings. That is an abuse.
57. Such a conclusion is not a case of the Court improperly weighing in on the evidence before the conclusion of the trial when all the evidence of the parties is in or improperly intervening where leave has been granted and the requirements for leave thus met, including the arguability of the Plaintiff’s case (JV PNG Constructions Limited v Samson [2022] SC 2224). It is about the Court being vigilant in protecting its process, which it is entitled to do at any stage of the proceedings.
58. The Court’s finding that the Plaintiff’s claim is a sham, or one which cannot possibly succeed, must be viewed in the following context.
59. The Plaintiff, a former high ranking civil servant, seeks in these proceedings, to be reinstated to an office that has at its core, public service, an outcome that would:
    1. restore him to a position which at the time he tendered his resignation saw him suspended and the subject of ongoing disciplinary investigation for inter alia negligence in the discharge of his duties and incompetence, that investigation terminated by reason of his resignation;
    2. reinstate his working relationship with the First Defendant which only seven (7) months ago he viewed as broken and untenable with no evidence by him that since that time the relationship had been or is ever likely to be repaired;
    100. restore him to a working environment where political interference was the “norm” (to use his words in his letter of the 16 November 2023) with the First Defendant who he viewed, on his evidence, at best, to have engaged in financial impropriety and mismanagement, false accusation and in breach of her leadership responsibilities, a working relationship where he held the view that the First Defendant no longer had confidence in him and where, based on his allegations, he had lost confidence in her;
    4. restore him to a working relationship with the Secretary, a relationship which on his account had previously been cordial but which, by reasonable inference given the serious allegations he now makes against her, is likely at risk;
    5. restore him to the position of PA to purportedly protect the people of the Central Province to safeguard their financial welfare concerns against the Sixth Defendant^[2] notwithstanding the nature of the allegations (unproven) that led to the Plaintiff’s suspension and notwithstanding the Sixth Defendant having been acquitted of the charges against him.
60. The Plaintiff advances no logical or persuasive reason as to how his reinstatement would serve his interests, let alone the public interest, underscoring the Court’s conclusion that his application is a thing that it does not purport to be, or in other words, a sham.
61. It is a conclusion that must be viewed against the background of the Plaintiff’s history of instituting three different proceedings for leave for judicial review (Agiru v Electoral Commission [2002] SC687), the first of those proceedings OS No 294 of 2023 dismissed by Carey J as an abuse and as frivolous and vexatious, there being no appeal to that decision and the second of those proceedings OS No 146 of 2023 also dismissed by Carey J as an abuse and as disclosing no reasonable cause of action, there being no appeal to that decision or application to set aside based on an ex tempore order. In proceedings OS No 294 of 2023 the originating documents are identical to the original documents filed in respect of OS No 146 of 2023 save a pleading with respect to suspension instead of termination. In proceedings OS No 146 of 2023 the originating documents including the application for interim restraining orders and initiating affidavit material filed are identical to the original documents filed in respect of the current proceedings.
62. In response to the second issue for determination based of res judicata, the Plaintiff takes issue with whether the dismissal of OS No 146 of 2023 was final and determined on its merits. That is a matter for consideration, if necessary, on the second issue for determination as earlier identified. However, in the context of the current consideration centring on abuse of process, what is relevant is that the Plaintiff did not prosecute the application be brought in those proceedings, listed in circumstances of urgency at his request. It cannot be open to the Plaintiff to complain about an asserted failure on the part of another Judge of this Court to then deal with the application before him on its merits, one that the Plaintiff chose not to prosecute with due diligence, where, purportedly aggrieved by the order, he then did nothing to remedy his grievance, either by way of appeal or an application to set aside an order made in the absence of a party. By way of reductio ad absurdumis, it is complaining about how a race official conducted an Olympic 100 metre semi-final because one of the runners, who had arguable prospects of a gold medal in the final, didn’t show, the date and time of the race having been fixed to suit that runner’s convenience.
63. What the Plaintiff did do was file a fresh application for leave for judicial review of the same decision, involving the same parties relying on the same material. It was a practice on which Carey J had earlier made comment and had been rightly critical.
64. As the transcript of the hearing before His Honour Justice Carey reveals, in reaching a conclusion that the earlier proceedings OS No 146 of 2023 were an abuse and should be dismissed in entirety His Honour evidenced familiarity. His ex-tempore reasons for the decision set out why he viewed the particular application before him to be an abuse and why on his own volition he was dismissing the proceedings. His Honour noted that it involved a circumstance frequently seen in the Court, expressing concern about parties who use different court avenues involving the same set of facts.
65. The submissions advanced with respect to the purported steps Counsel for the First and Second Defendants should have taken at the leave application are not persuasive. A leave application is strictly heard and determined ex parte pursuant to Order 16 Rule 3(2) of the NCR. It is a ‘filtering’ process. The fact that the lawyer for the First and Second Defendant was in Court at the time is not persuasive of a finding that it was open to her to successfully seek leave to be heard by way of, presumably, some impromptu oral application. Leave to be heard, at that stage, is not a matter of right (Innovest v Pruaitch [2014] N5949). The fact that there was no appeal to the granting of leave is not a matter on which the Court places significant weight when considering whether the proceedings before this Court amount to an abuse of process.
66. The Court acknowledges that the Plaintiff has recently changed his legal representation. None of the following observations are a reflection on his present lawyer. That said, the history of this litigation as outlined does not reflect well on the Plaintiff. Litigation is a process of resolving rights-based disputes through a court system. As noted earlier the Court should be slow to deprive a litigant of a right to be heard. With that right, however, comes responsibilities, including the responsibility of the litigant, and the lawyers who act on their behalf who are officers of the Court, to ensure that the processes and procedures of the Court are followed as intended.
67. The Court’s responsibility to ensure that its processes are not abused, is a serious one. There is good reason for this. It is because it provides the safest path to a fair outcome.
68. The form that an abuse of Court process may take is not capable of finite measurement (Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13 per Lord Diplock at [1]). It may, for example, involve using the Court processes to engage in deliberate delay, or the filing of applications involving the same parties and issues in different proceedings whether in the same or a different litigation stream, either as a form of ‘judge shopping’ or until a preferred outcome is achieved or for some perceived strategic advantage. At its core, however, is the use of a court process in way not intended. It is using the rules and procedures meant to ensure a fair system to manipulate that system for a desired outcome. To use a colloquial expression, it is an attempt to ‘game the system’. At its core also, as Justice Carey, accurately described, respectfully to His Honour, is bad lawyering. This Court respectfully endorses the concerns expressed in the plainest terms by His Honour in his ex tempore reasons in OS No 146 of 2023 with respect to the misuse of Court’s processes by litigants and/or their lawyers and the impacts of that on the Court’s work.
69. In the end unless the Court zealously protects its processes, it is the administration of justice which suffers.
70. While the Plaintiff was granted leave for judicial review, an abuse of Court process can be raised at any stage of the proceedings. For the various reasons given, the Plaintiff’s suit for judicial review requires dismissal. It is frivolous, vexatious, discloses no reasonable cause of action and is an abuse of Court process.
71. Having so decided it is not necessary to consider the issue of res judicata.
    

ORDERS

72. The Court makes the following orders:
    
    1. Pursuant to Order 16 Rule 13(13)(2)(a) & 2(b)(a) of the National Court Rules, the Plaintiff’s application for judicial review be dismissed for failure to disclose a reasonable cause of action, for being frivolous and vexatious and an abuse of Court process.
    2. The Plaintiff pay the Defendants’ costs on a solicitor client basis to be agreed or taxed.
    3. Time to be abridged.

_______________________________________________________________
Raurela Lawyers: Lawyers for the Plaintiff
Mel & Hennry Lawyers: Lawyers for the First, Second & Sixth Defendants
Office of the Solicitor General: Lawyers for the Third and Fourth Defendants

---

^[1] Affidavit of Plaintiff filed 29 January2024 at [9] & [10]
^[2] Affidavit of Plaintiff filed 28 December 2023 at [14]