Independent State of Papua New Guinea v Namah [2020] PGSC 127; SC2037 (16 November 2020)

SC2037

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 16 OF 2020 (IECMS)

BETWEEN:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
First Appellant

AND:
PONDROS KALUWIN in his capacity
as PUBLIC PROSECUTOR
Second Appellant

AND:
HONOURABLE BELDEN NAMAH, MP
First Respondent

AND:
LEADERSHIP TRIBUNAL comprising the HON. JUSTICE HIGGINS and SENIOR MAGISTRATES PATRICIA TIVESE and ALEX KALANDI
Second Respondent

AND:
OMBUDSMAN COMMISSION
Third Respondent

AND:
CHIEF JUSTICE
Fourth Respondent

Waigani: David J, Hartshorn J, Anis J
2020: 12^th & 16^th November

Notice of objection to competency

Cases Cited:
Papua New Guinea Cases

Lowa v. Akipe [1992] PNGLR 399
Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112
Kalasim v. Mond (2006) SC828
Amet v. Yama (2010) SC1064
Wilson v. Kuburam (2016) SC1489
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Rava (2018) SC1694

Overseas Cases

Crawford Adjusters v. Sagicor General Insurance (Cayman) Limited [2013] UKPC 17
Williams v. Spautz [1992] HCA 34; (1992) 174 CLR 509

Counsel:

Mr. N. Yalo, for the First Appellant
Mr. G. Geroro, for the Second Appellant
Mr. G. Sheppard and Mr. P. Tabuchi, for the First Respondent

16^th November, 2020

1. BY THE COURT: This is a decision on a contested objection to competency of this appeal.

Background

2. The two appellants, the Independent State of Papua New Guinea (State) and Pondros Kaluwin in his capacity as the Public Prosecutor (Public Prosecutor) appeal against part of a judgment and orders of the National Court given on 16^th July 2020 (decision appealed). The decision appealed amongst others:

a) quashed the decision of a Leadership Tribunal. That decision had found the first respondent, Hon. Belden Namah (Belden Namah) guilty of misconduct in office and that he be recommended for dismissal from office;

b) granted a permanent stay of certain allegations of misconduct in office by Belden Namah;

c) declared that the Leadership Tribunal proceedings were resolved and that the suspension of Belden Namah from duty was lifted.

Objection to competency

3. Belden Namah objects to the competency of the appeal on the grounds of a failure to comply with Order 10 Rule 4(a) Supreme Court Rules; that the Public Prosecutor has no standing to commence civil appeals; a failure to comply with Order 10 Rule 3 Supreme Court Rules and that paragraphs 3.7 and 3.8 of the notice of appeal are incompetently pleaded.

4. Under the ground concerning the Public Prosecutor, Belden Namah contends that this appeal is unconstitutional, that neither of the appellants have standing to bring this appeal and that the appeal is an abuse of process.

5. The Public Prosecutor supported by the State, objected to the notice of objection to competency as it was not served within time. It was also submitted that the other grounds lacked specificity and do not affect jurisdiction.

6. In regard to the objection to the notice of objection to competency that it was not served within the time prescribed by Order 7 Rule 15(b) Supreme Court Rules, we note that it is conceded that the notice was served four days late. The evidence is that this was due to a sealed copy not being released in time by the Supreme Court Registry. Order 7 Rule 19 provides for a scenario in which an appeal may be dismissed as incompetent notwithstanding that a notice of objection to competency is not given. A failure to comply with this rule therefore does not preclude an objection to competency. We are also aware of numerous authorities to the effect that an objection to competency may be made at any time before the hearing of an appeal notwithstanding the requirements of the Supreme Court Rules concerning objections to competency: Lowa v. Akipe [1992] PNGLR 399; Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112 and Kalasim v. Mond (2006) SC828. Consequently, we reject the objection to the notice of objection to competency. The appellants’ are able to argue as to costs in the event that the appeal is dismissed as incompetent.

7. In the course of the hearing of the objection to competency under the ground that the Public Prosecutor has no standing to commence civil appeals, Belden Namah submitted that this proceeding is an abuse of process as it has been brought by parties with no standing and for the collateral purpose of frustrating, avoiding and defeating other proceedings commenced by Belden Namah. We give consideration to this issue first.

8. Counsel for the Public Prosecutor submitted that there was no application before the court seeking redress for this proceeding being an alleged abuse of process and there was no evidence of collusion, abuse of process or bias. Counsel for the State submitted that there was no issue as to standing as the National Court which heard the judicial review, of its own volition, appointed amongst others, the State and Public Prosecutor as defendants to that proceeding and so the appellants’ are entitled to appeal. We concur with this submission. If the appellants’ were parties to the proceeding from which the decision appealed emanates, they are entitled to appeal. The issue of whether they should have been made parties is not before the Court.

9. In regard to there not being an application before the court seeking redress for abuse of process, we reproduce [27] of Amet v. Yama (2010) SC1064 from the decision of Salika DCJ (as he then was) and Batari J:

“27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:

“It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.””

10. Further, in Wilson v. Kuburam (2016) SC1489, Gavara Nanu J with whom Bona J agreed, said at [31]:

“In any event, this Court has the inherent jurisdiction to consider and determine the issue of abuse of process on its own initiative as it is a relevant issue which has arisen before the Court: Anderson Agiru v. The Electoral Commission (supra)”

11. We are satisfied therefore, that we are entitled to consider, at this juncture, whether the proceeding is an abuse of process.

Law

12. As to what constitutes an abuse of process, in Jacob Popuna v. Ken Owa (2017) SC1564, which was followed in Telikom (PNG) Ltd v. Rava (2018) SC1694, the Court at [18] said:

“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.””

13. We also reproduce the following passage from Telikom v. Rava (supra) at [21]:

“To emphasise that the kinds of circumstances in which an abuse of process may arise are not closed, as I did in Nae Ltd v. Curtain Bros Papua New Guinea Ltd (2015) N6124 and Amos Ere v. National Housing Corporation (2016) N6515, 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 [1981] UKHL 13; [1982] AC 529, as to the inherent jurisdiction of a court to deal with an abuse of its process:

“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.””

Consideration

14. This appeal has been brought partly by the State, by the Attorney General, which he is entitled to do. The State contends that it is entitled to bring the appeal as it was a party to the judicial review proceeding from which the decision appealed emanates. As referred to, the State became a party to the judicial review proceeding because the National Court, of its own volition, named the State amongst other entities, as a defendant.

15. In the ordinary course, in an appeal from a decision of a National Court in a proceeding commenced by a leader challenging a decision of a Leadership Tribunal, the leader brings the appeal against the Leadership Tribunal and against the Public Prosecutor. The Leadership Tribunal if represented, is represented usually by the Solicitor General. The Public Prosecutor usually appears in person or by a lawyer from his office. The Public Prosecutor is a constitutional officeholder and is independent under the Constitution. He is not subject to direction or control. He may engage private counsel to appear on his behalf. In this instance, as he also was named as a defendant in the judicial review proceeding by the National Court of its own volition, the Public Prosecutor could decide whether to appeal the decision appealed.

16. Here, the Attorney General on behalf of the State, by virtue of being named as a defendant in the judicial review proceeding, formerly engaged Geroro Lawyers to file an appeal against the decision appealed. This is in a letter dated 16^th July 2020 signed by the Attorney General also in his capacities as Deputy Prime Minister and Minister for Justice (instruction letter). The engagement is said to be pursuant to the powers vested in the Attorney General under s. 7(i) Attorney Generals Act 1989. The power of the Attorney General under s. 7(i) is to instruct lawyers within or outside the country to appear for the State in any matter. Here, the Attorney General instructed Geroro Lawyers that:

“You are to undertake all steps necessary for and on behalf of the Public Prosecutor and the Independent State of Papua New Guinea in the appeal you will file for them, including a stay of the above mentioned decision until final determination of the appeal filed.”

17. The instruction letter was copied to Mr. Tauvasa Tanuvasa, the Solicitor General, the Public Prosecutor and the Hon. James Marape, the Prime Minister. A partner of Geroro Lawyers, being counsel for the Public Prosecutor in this appeal, has confirmed that his firm has not received a letter of instruction to act for the Public Prosecutor from the Public Prosecutor.

18. The appeal was filed by Geroro Lawyers, then acting for both the State and the Public Prosecutor. An application for a stay of the decision appealed was filed. The Public Prosecutor gave evidence in support of the stay. His evidence is amongst others, to the effect that Belden Namah is a Member of Parliament and the Opposition Leader of the National Parliament. Belden Namah has commenced proceedings in the Supreme Court challenging the election of the Hon. James Marape as Prime Minister by the Parliament (PM proceeding) and the constitutionality of the National Pandemic Act 2020 (pandemic proceeding). If Belden Namah is successful in either of these other proceedings and then found not to have had the standing to bring these proceedings because of this appeal being successful, an absurd result would ensue, the Public Prosecutor deposes.

19. The application for stay was unsuccessful. Manuhu J. in his decision, commented that the concerns raised by the Public Prosecutor were political in nature. In our view, the evidence given by the Public Prosecutor was on matters that are outside of the usual remit of matters of concern of a person in the position of the Public Prosecutor and who in this instance, is appealing against a decision which concerns the misconduct of a leader and penalties.

20. As referred to, the Attorney General copied his instruction letter to the Prime Minister. This is in circumstances where:

a) the State is normally not an appellant or indeed, a party to an appeal from a decision of the National Court on a judicial review of a Leadership Tribunal decision, but is a party in this instance because the National Court, of its own volition, made the State a defendant;

b) the subject of this appeal does not affect the Prime Minister, the office of the Prime Minister, the National Executive Council or arguably the State;

c) the Attorney General is a member of the National Executive Council and the Prime Minister is the head of the National Executive Council;

d) Belden Namah is the Opposition Leader. He has commenced the PM proceeding and the pandemic proceeding in the Supreme Court;

e) if this appeal is successful (and if the application for stay of the decision appealed had been successful), this will adversely affect the standing of Belden Namah to continue with the PM proceeding and the pandemic proceeding;

f) the Attorney General has instructed one law firm to act on behalf of both the State and the Public Prosecutor and to file an appeal and stay application on behalf of the State and the Public Prosecutor, notwithstanding that the Public Prosecutor is a constitutional officeholder, is independent and not subject to direction and control. The Public Prosecutor should decide himself whether to appeal and should either appear for himself or engage a lawyer to act for him.

21. After the appeal was filed by Geroro Lawyers on behalf of the State and the Public Prosecutor, the Public Prosecutor gave evidence that he had read the appeal documents and confirmed them, and gave further evidence in support of the stay application. This evidence was concerned with amongst others, the effect upon the PM proceeding and the pandemic proceeding.

22. Given the circumstances, there is a clear apprehension that this appeal was commenced for a purpose other than to prosecute the appeal itself. The question is posed, why else was the Prime Minister copied into the instruction letter by the Attorney General? The Public Prosecutor did not commence his appeal himself and did not engage the lawyers that represent him in the appeal, notwithstanding that he is independent and not subject to direction and control. The evidence which the Public Prosecutor gave in support of the stay application gives rise to the apprehension that by this action the Public Prosecutor acquiesced with the other purpose for which the appeal was commenced. That other purpose was to gain an advantage in other proceedings which are named by the Public Prosecutor, in his evidence, the PM proceeding and the pandemic proceeding.

23. As to whether this other purpose was an improper purpose, we refer to the High Court of Australia decision of Williams v. Spautz [1992] HCA 34; (1992) 174 CLR 509, in which the majority reviewed the principal English and Australian authorities and at [27] summarised the tort of abuse of process as being when:

“... the party who has instituted proceedings has done so for a purpose or to affect an object beyond that which the legal process offers.”

24. We also reproduce the following statement by Lord Wilson in the Privy Council decision of Crawford Adjusters v. Sagicor General Insurance (Cayman) Limited [2013] UKPC 17 at [63]:

“If the claimant’s intention is that the result of victory in the action will be the defendant’s downfall, then his purpose is not improper: for it is nothing other than to achieve victory in the action, with all such consequences as may flow from it. If, on the other hand, his intention is to secure the defendant’s downfall - or some other disadvantage to the defendant or advantage to himself - by use of the proceedings otherwise than for the purpose for which they are designed, then his purpose is improper.”

25. In our view, after a detailed consideration of the evidence and submissions and the case authorities to which we have referred, we are satisfied that this appeal has been commenced on the instructions of the Attorney General on behalf of the State and the Public Prosecutor, for a collateral purpose and purpose other than to primarily appeal the decision appealed. That purpose is to obtain an advantage in the PM proceeding or the pandemic proceeding or both by seeking to adversely affect the standing of Belden Namah to bring those proceedings. The Public Prosecutor has in effect, by his actions, permitted the State to commence and prosecute the appeal, albeit partly in his name, and his participation to date has been to support the collateral purpose and purpose other than to primarily appeal the decision appealed. To that extent we are satisfied that this is an improper purpose. This appeal may be categorised as a proceeding which seeks to obtain an advantage in other proceedings and as such, using the words of Lord Diplock, “... bring(s) the administration of justice into disrepute among right-thinking people.” Consequently, we are satisfied that this appeal should be dismissed as an abuse of process. Given this it is not necessary to consider the other submissions of counsel.

Orders

26. The Court orders that:

a) This appeal is dismissed as it is an abuse of process;

b) The appellants’ shall pay the costs of the first respondent of and incidental to this appeal.
__________________________________________________________________
Nemo Yalo Lawyers: Lawyers for the First Appellant
Geroro Lawyers: Lawyers for the Second Appellant
Young & Williams Lawyers: Lawyers for the First Respondent