SC1168

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 74 OF 2011 & SCA NO 86 OF 2011

BETWEEN

HON. PATRICK PRUAITCH, M.P
Appellant

AND

CHRONOX MANEK, JOHN NERO & PHOEBE SANGETARI, comprising The Ombudsman Commission
First Respondents

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 Respondents

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Batari, Gabi & Makail, JJ
2011: 16th December & 2012: 02nd March

SUPREME COURT APPEAL - Apprehension of bias against judge - Disclosure of interest by judge - Whether sufficient disclosure made by judge - No application for disqualification made - No decision made by judge for disqualification - Appropriateness of appeal.

APPEAL COURT APPEAL - Stay of order of National Court - Judge of National Court exercising powers following stay order - Effect of - Excess of jurisdiction - Error of law - Miscarriage of justice - Appeal upheld.

Facts

The appellant who is a member of Parliament appealed against two decisions of the National Court to the Supreme Court, raising among other reasons, apprehension of bias against the primary judge. He alleged when the primary judge made certain directional orders to expedite the matter in the National Court, he referred counsel for the parties to, inter-alia, a Supreme Court case that had a bearing on the proceedings before the National Court, which decision was pending and that the judge was a member of that Court. Following the directional order, the appellant filed the first appeal and obtained a stay order from the Supreme Court. Following that, the primary judge re-called the matter and vacated his own order when the stay order was in force.

Held:

1.	In a case where a party seeks to disqualify a judge from further dealing with a matter on the ground of apprehension of bias, an application must be made in writing by notice of motion supported by affidavit evidence to the judge for disqualification.

2.	Where a party fails to make an application for disqualification of the judge and appeals to the Supreme Court following disclosure of any interest in the matter by the judge, the appeal amounts to an abuse of process and may be dismissed.

3.	In the present case, the appellant failed to make an application in writing by notice of motion supported by affidavit evidence to the primary judge for disqualification on the ground of apprehension of bias before appealing to the Supreme Court. The appeal was an abuse of process.

4.	The primary judge acted in excess of jurisdiction when he re-called the matter and vacated the order when there was a stay order of the Supreme Court staying the order. 

5.	The appeal SCA No 74 of 2011 was accordingly, dismissed.

6.	The appeal SCA No 86 of 2011 was accordingly, upheld and the order of the National Court was set aside or quashed.

7.	Each party was ordered to bear their own costs of both appeals.

Cases cited:

Papua New Guinea cases

Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1134 
Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1093 
Grand Chief Sir Michael Somare -v- Chronox Manek & Ors (2011) SC1118
PNG Pipes Pty Limited -v- Mujo Sefa & Ors (1998) SC592
Rimbink Pato -v- Rueben Kaiulo & Anor (2003) N2455
Peter Yama -v- Bank South Pacific Limited & Ors (2008) SC921
Matiabe Oberia -v- Chief Inspector Michael Charlie & The State (2005) SC801

Overseas cases

Saxmere Company Ltd -v- Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35
Naijar -v- Hames (1991) NSWLR 224

Counsel:

Mr M M Varitimos & Mr F Griffin, for the Appellant
Mr H Maliso, for the First Respondents
Mr L Kandi, for the Second, Third & Fourth Respondents

02nd March, 2012

JUDGMENT

1.	BY THE COURT: The appellant who is a member of Parliament appeals against two decisions of the National Court. In SCA No 74 of 2011, he appeals certain directional orders of the primary judge of 14th June 2011 in relation to the progressing of the matter to trial and in SCA No 86 of 2011, he appeals the decision of the primary judge of 26th July 2011 in which the judge vacated the directional orders of 14th June 2011. 

2.	The background facts giving rise to these two appeals are set out in detail in the judgment of the Supreme Court of 20th October 2011, given in relation to a consolidated hearing of three different applications, one of which was an application for leave to appeal in SCA No 86 of 2011 in Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1134. It is therefore not necessary to restated all the background facts suffice to state briefly the Ombudsman Commission referred the appellant to the Public Prosecutor for prosecution on allegations of misconduct in office and the Public Prosecutor requested the Chief Justice to appoint a leadership tribunal to investigate the allegations. 

3.	Following an earlier unsuccessful application for leave to apply for judicial review in proceedings OS No 456 of 2009 under O 16 of the National Court Rules before Hartshorn, J to review his referral for investigation by a leadership tribunal, a leadership tribunal was established. The appellant then filed further proceedings in OS No 34 of 2010, this time seeking the same relief for which leave was denied in OS No 456 of 2009. Kariko, J dismissed the proceedings on the grounds that it amounted to multiplicity of proceedings and the matter was res judicata. He appealed to the Supreme Court. The Supreme Court allowed the appeal, reinstated the proceedings and ordered that it be heard by another Judge of the National Court. That was in Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1093.

4.	Following the Supreme Court decision, OS 34 of 2010 was initially listed before Kandakasi, J but deferred due to his Honour's unavailability. Then on 14th June 2011, his Honour called the matter. Notwithstanding that the case was not on the list of matters to be heard by the judge; that counsel for all the parties were not present and that no opportunity were given to the parties to be heard on the application, the Court ordered inter alia:

"7.	The matter shall return for motion and allocation of a hearing date for the substantive matter on 20 July 2011, and for parties to further consider the matter in light of the decision in Supreme Court Reference No. 8 of 2009 (a reference by the Ombudsman Commission) and the decision of the Supreme Court in SCA Originating Summons No. 2 of 2011, if it is decided and delivered before the matter returns to Court on 20 July 2011."

5.	His Honour Kandakasi, J was a member of the Supreme Court in the matter of Grand Chief Sir Michael Somare v. Manek & Ors, SC OS No. 2 of 2011 where it was held in relation to the proceedings commenced by Hon. Patrick Pruaitch, MP (OS No. 34 of 2010):

"19.	…Applying the principles we have set out above, Kariko .J correctly in our respectful view, dismissed the proceedings for abuse of process (OS No. 34 of 2010)."

6.	Aggrieved by the manner in which the proceedings leading up to the making of the directional orders were conducted, the appellant filed an application for leave to appeal against the directional orders in SCA 74 of 2011. On 15th July 2011 his Honour Injia, CJ sitting as a single Supreme Court Judge hearing the leave application, ordered, inter-alia:

"1.	The Application for Leave to Appeal is granted.

2.	 Pursuant to Order 7 r 5 (2) of the Supreme Court Rules the order sought, in 2.	paragraph 2 at page 9 of the Notice of Application for Leave to Appeal, namely that the Notice of Application for Leave to Appeal be treated as the Notice of Appeal.

3.	The matter is fixed on Friday 22 July at 9:30am for directions to be issued in order for the substantive appeal to be listed for hearing by the full Court in the August sittings of the Supreme Court.

4.	The Applicant shall prepare, file and serve a draft index to the Appeal Book and a draft Appeal Book for the Court's consideration and endorsement by Wednesday 20 July, 2011.

5.	If Order No. 4 is not complied with, the Court will consider referring the appeal to the full Court for summary determination in the August sittings of the Supreme Court pursuant to R.16 (b) of the Supreme Court Listings Rules 2010.

6.	The matter is adjourned to Monday, 18 July 2011, at 9:30am, for hearing and arguments on the question of costs of this application and the application for stay."

7.	The Chief Justice granted these orders after being satisfied that, an arguable case of apprehension of bias and denial of fair hearing had been made out. His Honour stated:

"14.	 That much said, I consider that those arguments do not provide a satisfactory answer to the perceived or apprehended bias that may arise or occur on the part of the Court or trial Judge in the future conduct of the proceedings. The applicant's right to a fair hearing in the future conduct of the case in all its procedural and substantive aspects of the case is fundamental to the dispensation of justice in the case. That is the pivotal point raised in these appeal proceedings…

15.	I am satisfied on the face of those material before me that an arguable case has been made out that the trial Judge erred in taking into account the impending decision in SCOS No. 2 of 2011 which was not properly before that Court, and in so doing the apprehension of bias. I am also satisfied that there was an error which is not only patent but that is adversely affected applicant's right to a fair hearing of his claim and stood to prevent fair proper determination of the issues in the trial. For the foregoing reasons I am inclined to grant leave to appeal."

8.	The matter returned to his Honour on 18th July 2011, for interim Stay Orders that:

"1.	Compliance with Orders numbered 6 and 7 of the orders of 14 June 2011 are stayed until 19 July 2011 at 9:30am.

2.	The application for stay is fixed for hearing on 19 July 2011 at 9:30am.

3.	The costs of the application for leave is reserved to 19 July 2011 at 9:30am." 

9.	On 19th July 2011, Injia CJ heard the application for stay and ordered that;

"1.	Orders numbered 6 and 7 made by Kandakasi J on 14 June 2011 in OS No. 34 of 2010 be stayed until the hearing and determination of this Appeal.

2.	The costs of and incidental to the application for leave and stay be reserved."

10.	Notwithstanding the orders of Injia CJ, sitting as a Supreme Court on 15th July, 2011 which granted the applicant leave to appeal from the orders of 14th June 2011 in OS No. 34 of 2010 and the Supreme Court stay of orders numbered 6 and 7 made on 18th and 19th July 2011, his Honour, Kandakasi J re-called the matter in OS No. 34 of 2010 on 26th July 2011 and ordered that:

"1.	The Orders of 14 June 2011 are forthwith vacated.

2.	Without admitting or affirming in any manner or form or whatsoever that Kandakasi J has been actuated, moved, influenced by any form of bias against the Plaintiff, Kandakasi J is disqualified to enable an expedited hearing of and disposal of this particular proceedings.

3.	Parties to inform the Supreme Court of these orders.

4.	Parties are to liaise with the Registrar to have this matter listed before a different Judge for an expedited hearing."

11.	When the matter in proceedings OS 34 of 2010 was mentioned before Kandakasi J on 26th July, 2011 lawyers appearing for the parties informed his Honour of an appeal against his directional orders of 14th June 2011 and conceded that the Supreme Court was seized of the matter. We also note from the common facts that, the matter was listed in the diary of the Court sittings for that day without adequate notice to the lawyers and that there was no application before the Court for the orders that were made. 

12.	With those background facts, we deal first with SCA No 74 of 2011. The appellant raised two grounds of appeal. They are denial of natural justice and apprehension of bias against the primary judge.

13.	In relation to the first ground, it is unclear whether the matter was fixed for mention or hearing when the matter was called before his Honour on 14th June 2011. On that date, Mr Francis Griffin appeared for the appellant and Mr Vergil Narokobi appeared for the first respondents. In relation to the second ground, the issue raised is the question of when a party may appeal a decision of a judge in a case where an apprehension of bias is alleged against the judge.

14.	On 25th May 2011, the first respondents filed a notice of motion seeking dismissal of the proceedings pursuant to Order 12, rule 40(1)(a) of the National Court Rules on the ground that the Supreme Court decision of 31st May 2010 in SCA No 07 of 2010 (Hon Patrick Pruaitch, MP -v- Chronox Manek (2010) SC1052) on the appellant's application for leave had determined the factual issues in the present appeal, hence the matter was res judicata. Alternatively, the first respondents sought directions in relation to the filing of affidavits and notices to cross-examine witnesses. 

15.	According to the transcript of the proceedings of the National Court of 14th June 2011, Mr Griffin appeared for the appellant and requested for a special fixture hearing of the notice of motion. It appears, that request was made only in relation to the application seeking dismissal of the proceeding. The primary judge then entered into some discussions with counsel for the respective parties in relation to how best the application for dismissal could be expedited. 

16.	In the course of the discussions, his Honour drew counsel's attention to a number of case authorities including Grand Chief Sir Michael Somare -v- Chronox Manek & Ors (2011) SC1118. Counsel for the first respondents Mr Narokobi explained that the application for dismissal of proceedings was based on the Supreme Court decision of 31st May 2010 in SCA No 07 of 2010 (Hon Patrick Pruaitch, MP -v- Chronox Manek (2010) SC1052) on the appellant's application for leave which had determined the factual issues in the present appeal. He intimated that the proceeding was res judicata. Mr Griffin urged his Honour to adjourn the matter for a special fixture hearing on another date.

17.	In the end, his Honour decided against setting down the application for dismissal of proceedings for special fixture hearing. Instead, he issued the following directions, which orders, are now subject of the appeal in SCA No 74 of 2011:

"1.	Leave is granted to dispense with the requirements to have the matter mediated.

2.	The Plaintiff shall file and serve his affidavits of evidence he relies on in support of his position by 5 July 2011.

3.	The Defendants are to file and serve their affidavits by 12 July 2011.

4.	The Plaintiff shall draft and forward to the Defendants by 5 July 2011, a draft Statement of Agreed and Disputed Facts and Issues clearly setting out the relevant facts and which facts are disputed and why they are factual, legal and factual/legal questions that arise.

5.	The Defendants are to respond and provide their comments by 12 July 2011.

6.	Parties are to meet in conference to settle the Statement by 14 July 2011, after which the Plaintiff shall file and serve the Statement with the Defendants' endorsement by 18 July 2011.
7.	The matter shall return for mention and allocation of a hearing date for the substantive matter on 20 July 2011, and for parties to further consider the matter in light of the decision in Supreme Court Reference No. 8 of 2009 (a reference by the Ombudsman Commission) and the decision of the Supreme Court in SC Originating Summons No. 2 of 2011 if it is decided and delivered before the matter returns to Court on 20 July 2011.

8.	Time is abridged to the time of settlement with the Registrar, which shall take place forthwith."

18.	According to term 7 of the order of 14th June 2011, the matter was to return to Court for mention and possibly allocation of trial date on 20th July 2011. On that date, his Honour was not available and the matter was not mentioned. It was subsequently mentioned on 26th July 2011 before his Honour. Before the matter returned to Court on 26th July 2011 for mention and possibly allocation of a trial date, the appellant had already filed this appeal. That was on 15th July 2011. He had also obtained a stay against terms 6 and 7 of the order of 14th June 2011 before the Chief Justice. That was on 19th July 2011.

19.	The decision in Grand Chief Sir Michael Somare's case was not delivered until 01st July 2011. It appears the decision prompted the appellant to file this appeal. That case dealt with the issue of when a leader is suspended from office while being investigated for allegations of misconduct in office. It held among other reasons that, where a leader is referred by the Ombudsman Commission for investigation by a leadership tribunal, the leader is automatically suspended from duties. It is in that regard that the appellant alleged apprehension of bias against his Honour. This is because the decision in that case not delivered until 01st July 2011 and that his Honour was a member of the Court in that case. 

20.	There is no dispute his Honour did not make a decision in relation to his disqualification as a result of allegations of apprehension of bias against him. There is also no dispute the appellant did not make an application to his Honour for disqualification on the ground of apprehension of bias. It appears the appeal was anticipatory of apprehension of bias. That is to say, the appellant had anticipated that his Honour might be influenced by the decision of Grand Chief Sir Michael Somare's case (supra) as the decision was in favour of the Ombudsman Commission.

21.	This is a genuine and legitimate concern as it does have an adverse effect on the appellant's right to a fair trial in the National Court. But is it proper for the appellant to appeal and ask the Supreme Court to set aside the directional orders on the ground of apprehension of bias? In other words, when can a party appeal a decision of a judge where an apprehension of bias is alleged against the judge? His counsel Mr Varitimos submitted the appellant was not in a position to request his Honour to disqualify himself from further hearing of the matter because the appellant was not aware of the Grand Chief Sir Michael Somare's case as he was not a party in that case and was caught by surprise so to speak. 

22.	In any case, it did not matter if the appellant had not made a formal application either orally or by way of a notice of motion for the disqualification of his Honour. What was relevant and critical was that, the conduct of his Honour raised an apprehension of bias which in turn raised serious issues in relation to a fair trial and denial of natural justice such that the appellant was entitled to appeal to the Supreme Court for the disqualification of his Honour. 

23.	Mr Varitimos has not referred the Court to any case authority to support the second leg of his submission nor did he refer to any case authority in relation to when an application for disqualification of a judge may be made following the judge's disclosure of interest relation to a matter before him. The case authorities cited by him do not discuss the issues at hand. They discuss the principles of apprehension of bias and the circumstances in which a judge may disclose his interest in the case. In Saxmere Company Ltd -v- Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35, Blanchard, J at 51 said:

"It is frequently the position that a judge will think it appropriate to alert counsel and their clients to some circumstances which might at first blush, without sufficient information, attract attention. The judge does so in order that the parties to the case can consider the situation and either indicate a lack of concern or, if thought fit, make a recusal application, upon which full consideration can be given to the validity of the objection to the judge's sitting in the particular case."

24.	And at 52 (paragraph 34): 

"In this connection I reject the argument made for the respondent that there was an obligation on the appellants. If in doubt, to seek more information from the Judge in response to his disclosure. Quite the reverse; it is for a judge who makes a disclosure to ensure that the parties have enough information, shorn of unnecessary details, to make up their minds about whether to make a recusal application. They and their counsel should not be placed in the embarrassing position of having to seek further information from the judge." (Emphasis added).

25.	Tipping, J at 55 (paragraph 48) said:

"Before closing, I wish to address one further point. It concerns the circumstances in which a judge or other decision maker should make disclosure. I do not consider that the making of disclosure carries with it any implication that the very making of the disclosure indicates that the judge's impartiality is compromised. In that respect I disagree with the view expressed by the Court of Appeal for England and Wales in Taylor -v- Lawrence [2003] QB 528. A matter should be disclosed in any case where it is possible that the observer might reasonably think the judge could be biased as a consequence of it. The judge or the court can then consider the responses of all the parties to the disclosure and assess what course to take on that fully informed basis." (Emphasis added).

26.	In Naijar -v- Hames (1991) NSWLR 224, Kirby, JA at 229 said:

"If there is any interest or association with the parties which, undisclosed, could give rise to a reasonable apprehension of bias in an impartial observer knowing the relevant facts, that interest must be disclosed…….. It is then left to the parties to make submissions as to disqualification or to indicate they raise no objection." 

27.	These authorities also discuss when, how and why a judge may make a disclosure of interest in relation to a matter before him and the extent of the disclosure. They are also of persuasive value only. We are not persuaded that the appellant can bring an appeal against the directional orders made by his Honour on the ground of apprehension of bias when the issue of apprehension of bias was not considered and decided by his Honour. We are of the view the orders of 14th June 2011 were merely directional orders. They were issued by his Honour to expeditiously progress the matter to trial. In the meantime, his Honour urged counsel to consider the case authorities relating to suspension of leaders pending investigation by the leadership tribunal and come prepared on the next return date.

28.	If the appellant was concerned about the impartiality of the primary judge, we are of the view he could have raised it by way of an application for disqualification before his Honour anytime before or on the return date of 20th July 2011. In our view, it was recourse available to the appellant and it did not matter if the decision in the Grand Chief Sir Michael Somare's case was delivered before or after the application for disqualification.

29.	We also note during discussions with counsel on 14th June 2011, his Honour referred to section 217(6) of the Constitution which provides for the appointment of a leadership tribunal. His Honour went on to state that, "[a]nd that provision (s.217(6)) was argued in detail before the Supreme Court in which I was a member. That decision is pending." (Emphasis is added).

30.	In our view, that was the time his Honour disclosed his interest in the Grand Chief Sir Michael Somare's case. Was it a sufficient disclosure of his interest? We would say yes because his Honour's interest is that, he is a member of the Supreme Court bench in the Grand Chief Sir Michael Somare's case. That case dealt with the same legal issue raised in the Court below. The decision was pending at that time. In our view, these are sufficient information disclosing his Honour's interest in that case and which decision has direct bearing on the matter before his Honour. 

31.	Further, if one reads on from the transcripts, one would note his Honour said "[s]o, given all those, I am just wondering what is the best way to deal with it? On the one hand you want the findings of fact to be the relevant facts for the purpose of those proceedings. So that is dealing with evidential aspects but when it comes to the law, then as I say, the five men bench decision is one. The decision that is pending is another that would probably elaborate or otherwise take on from the earlier decision. So what do we do?..........." (Emphasis added).

32.	It is clear his Honour was a member of the Supreme Court bench that was deciding a legal issue that was relevant to the matter before him in the National Court. The information disclosed by his Honour would have put the appellant on notice of his Honour's interest in the case and would have triggered in his mind and that of his lawyers that an application for his Honour to recuse himself from the further conduct of the proceeding should be made. No such application was made before his Honour after the directions were issued on 14th June 2011 up until 26th July 2011. Instead, the appellant filed this appeal on 15th July 2011.

33.	We accept the submissions of the respondents that the appellant had the opportunity or recourse and should have applied to disqualify his Honour following his Honour's disclosure of interest in a matter that had relevance to the matter before him. While the respondents' counsel have not referred to any case authorities on this point, we consider the case of PNG Pipes Pty Limited -v- Mujo Sefa & Ors (1998) SC592 suggests that where a party seeks to disqualify a judge from presiding over a matter on the ground of apprehension of bias, it must make an application for disqualification to the judge concern. In that case, an application for disqualification was made by way of a notice of motion and the judge refused the application. On appeal, the Supreme Court upheld the appeal.

34.	Another case that lends support to the proposition that an application must be made to disqualify a judge is Rimbink Pato -v- Rueben Kaiulo & Anor (2003) N2455. That was a case where an application by way of a notice of motion was filed and moved before another judge to have a judge presiding over an election petition case disqualify himself on the ground that the judge was seen having coffee with the petitioner. The requirement to file a notice of motion and supporting affidavit evidence in cases of qualification of a judge from presiding on a matter before the Court has now been settled by the Supreme Court in 2008 in Peter Yama -v- Bank South Pacific Limited & Ors (2008) SC921. The Supreme Court inter-alia, held:

"If a litigant wishes to request a Judge to disqualify himself from hearing a case, the litigant himself or through his lawyer must file and serve on all parties to the proceedings, a Notice of Motion seeking that relief together with affidavit evidence in support of the Motion. It is not sufficient that a request to disqualify is contained in a letter to a Judge's Associate or the Registrar of the Court or the Associate to the Chief Justice or to any Judge directly."

35.	Based on these cases, we consider where a party alleges likelihood of bias against a judge in relation to a case before the judge, the party must apply in writing by notice of motion supported by affidavit evidence to the judge concern for disqualification. Once the judge rules against the application, then and only then can the party mount an appeal to the Supreme Court. 

36.	In the present case, we consider an application for disqualification of his Honour would have been appropriate in the circumstances given the sufficient disclosure made by his Honour. The appellant could have applied to his Honour to disqualify himself in the National Court. In mounting this appeal, we are of the view the appellant has not only abused the Court's process but has also prematurely appealed the decision of the National Court in that, there was no decision made by his Honour in relation to his disqualification. We consider this appeal is a classical example of a party neat picking the issues that are less favourable to its case and this is an abuse of process.

37.	Where a party fails to make an application for disqualification of the judge and appeals to the Supreme Court following disclosure of any interest in the matter by the judge, the appeal amounts to an abuse of process and may be dismissed.

38.	That was the very concern raised by the Court in Matiabe Oberia -v- Chief Inspector Michael Charlie & The State (2005) SC801. The appellant applied for leave to appeal the decision of the National Court refusing his application for default judgment. Lay, J sitting as a single judge of the Supreme Court held among other reasons, that the appellant had other recourse in the National Court, in that, he could go on to have his cause of action tried in the ordinary way with no loss of or impediment to his rights as a result of the interlocutory decision. His Honour further held that the appellant had failed to demonstrate that the trial process should be interrupted by an appeal and refused the application for leave to appeal.

39.	For these reasons, we find no identifiable errors have been shown by the appellant in this case and would dismiss the appeal SCA No 74 of 2011. We order each party to pay their own costs.

40.	Turning to SCA No 86 of 2011, the thrust of the appellant's submission focused on the continued dealing of the matter by his Honour when the Supreme Court was seized of the matter. Following on from his submissions in SCA No 74 of 2011 on apprehension of bias against the primary judge, Mr Varitimos submitted following the issuance of the directional orders of 14th June 2011, on 15th July 2011, the appellant filed the appeal SCA No 74 of 2011 and on 19th July 2011, he obtained a stay against terms 6 and 7 of the orders of 14th June 2011 before the Chief Justice. On 26th July 2011, his Honour re-called the matter and vacated the orders of 14th June 2011. As such, his Honour's order of 26th July 2011 was made erroneously when his Honour was functus officio when stay order of the Supreme Court was binding on the primary judge. 

41.	The first respondents supported by the second, third and fourth respondents submitted there was nothing improper and extraordinary in the manner in which his Honour had dealt with the matter on 26th July 2011 which led to his Honour vacating his own order of 14th June 2011. His Honour did that to expedite hearing of the matter. 

42.	The submissions by the first respondents supported by the second, third and fourth respondents are appreciated. However, on a closer examination of the grounds, this appeal is clearly about the primary judge's continued dealing with the National Court proceedings in OS No. 34 of 2010 when the Supreme Court was seized of the matter. The issue raised and discussed by the Supreme Court in its ruling on leave in Hon. Patrick Pruaitch MP -v- Chronox Manek & Ors (2011) SC1134 was and is whether the National Court is bound by a Supreme Court decision/ruling or order. It is a jurisdictional issue.

43.	On the jurisdictional issue, the reasons we give are no different to the ones given by the Court when it granted leave to the appellant to appeal in SCA No 84 of 2011. For to give separate reasons would be repetitious and we feel it only appropriate in the circumstances to simply adopt the reasons expressed by the Supreme Court for parties' appreciation and benefit. We therefore quote thus:

"43.	This is a jurisdictional issue having its origin in the hierarchy of Courts set up in Constitution s.155 (1). The Supreme Court is the highest Court of the land followed by the National Court and other Courts (lower Courts). It is the final Court of appeal and has inherent jurisdiction to review decisions of the National Court (s.155 (2) (b). Under Sch. 2.9(1), all decisions of the Supreme Court are binding on all other Courts, but not on itself. The Constitution also makes it clear under Sch.2.9 (2) that all decisions of law by the National Court are binding on all other Courts except the Supreme Court.

44.	From this constitutional arrangement of the hierarchy and jurisdictions of the courts, it is clear that proceedings in the National Court are subject to and subservient to the proceedings and decisions or rulings of the Supreme Court. 

45.	In this case, after the Supreme Court granted the applicant leave to appeal the interlocutory orders of Kandakasi J and stayed further proceedings in OS No. 34 of 2010, his Honour re-called the matter and issued orders which purportedly vacated his previous orders. Those previous orders were the same orders that have been the subject of the Supreme Court appeal in SCA 74 of 2011. The trial judge also issued directional orders to expedite the hearing of the substantive issues.

46.	The process adopted by Kandakasi J is arguably pragmatic and possibly well intended for expeditious trial of the substantive issues. However, the manner in which his Honour continued to deal with OS 34 of 2010, when an application for leave to appeal has been granted and an appeal is pending before the Supreme Court in SCA 74 of 2011 raises serious questions of jurisdictional boundaries of the Supreme Court and National Court. The trial judge lacked the jurisdiction to deal with proceedings OS 34 of 2010 and what he did is arguably in defiance of the Supreme Court having been seized of the matter. 

47.	So, this raises the issue of whether or not the trial judge had properly exercised his judicial functions and powers or whether or not his Honour exceeded his powers when he recalled the case and continued to deal with it in the face of a pending appeal. We conclude that, the applicant has shown an arguable case that the Orders of 26 July 2011 were made in excess of jurisdiction."

44.	For these reasons, we are satisfied when his Honour re-called the matter on 26th July 2011 and vacated the order of 14th June 2011 when there was a stay order of the Supreme Court in force, his Honour had acted in excess of jurisdiction. We find an error has been committed resulting in a miscarriage of justice. The error must be corrected forthwith and we do so by upholding appeal SCA No 86 of 2011. As the appellant has been unsuccessful in the first appeal SCA No 74 of 2011, but successful in the second appeal, we consider it only fair that no award of costs be made against the respondents. Accordingly, we order each party bear their own costs of this appeal.

45.	The formal orders of the Court are:

1.	The appeal SCA No 74 of 2011 is dismissed.

2.	The appeal SCA No 86 of 2011 is upheld.

3.	The judgments, orders and directions made by Honourable Justice Kandakasi on 26th July 2011 in OS No 34 are discharged, set aside and quashed.

4.	Each party shall bear their own costs of both appeals.

Judgment and orders accordingly.
_________________________________________

Young & Williams Lawyers: Lawyers for the Appellant
Legal Counsel: Lawyers for the First Respondents
Acting Solicitor-General:  Lawyers for the Second, Third & Fourth  Respondents