Papua New Guinea Law Reports - 1990
[1990] PNGLR 117
N820
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
BOARD OF MANAGEMENT OF SIKISA COMMUNITY SCHOOL
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND EDUCATION BOARD AND OTHERS
Mount Hagen
Woods J
9 March 1990
16 March 1990
PRACTICE - National Court - Inherent jurisdiction - Power to make such orders as are necessary to do justice - Community schools inadequately staffed - Pupils seriously disadvantaged - Power to order repeating of grades without payment of fees - Constitution, s 155(4).
EDUCATION - Community schools - Absence of teachers throughout year - Pupils seriously disadvantaged - Power to order grades be repeated without payment of fees - Constitution, s 155(4).
The Constitution, s 155(4), confers on the National Court, inherent jurisdiction, in such circumstances as seem proper to make, “such orders as are necessary to do justice in the circumstances of a particular case”.
Held
The power conferred by s 155(4) includes power to order that students in community schools conducted by the Education Department whose education had been seriously disadvantaged by the absence of teachers throughout 1989, be permitted to repeat their grades in 1990 without payment of prescribed fees.
Cases Cited
SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.
Summons
This was the hearing of a summons for orders under s 155(4) of the Constitution.
Counsel
P Paraka, for the plaintiff.
J Everingham, for the defendant.
Cur adv vult
16 March 1990
WOODS J: The plaintiff is seeking declarations regarding the operation of the community school at Sikisa in the Western Highlands. The declarations and orders sought are to attempt to rectify what the parents and the Board of Management see as disadvantages the students have suffered because of the continual absence of teachers front the school in 1989.
The plaintiff is the Board of Management of the school and the basis of its claim is that, because of the continual absenteeism of the grade 4 and grade 5 teachers of the school during the 1989 year, the students in those classes did not get a proper education sufficient for them to advance to the next year. They are seeking orders that the pupils in those grades last year repeat the same grades this year and that the Education Department of the Western Highlands Province pay the school fees for those pupils for the repeat year.
The plaintiff is bringing this case by virtue of s 155(4) of the Constitution, which confers on the National Court an inherent power to make, in such circumstances as seem proper, “such orders as are necessary to do justice in the circumstances of a particular case”. The parameters of this provision were fully discussed in the case SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150 and I quote Kidu CJ, at 155:
“The provision under reference is worded in very wide terms. It does not, however, vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155(4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.”
In this case, the plaintiffs are seeking to enforce their rights once the Education Department has accepted their children as students and they have paid fees to have the appropriate education.
Whilst it is clear that the Board of Management has some functions under the Education Act (Ch No 163), and I refer here to s 62, for determining the aims and goals of the school and for supervising the achievement of these aims and goals, it is submitted that they have been frustrated in their attempts by the failure of the Education Board of the Western Highlands to treat their complaints properly. The plaintiffs have filed a number of affidavits and the main evidence is an analysis of each school day during the year when the teachers were absent. This evidence is a critical indictment of the attendance of the teachers and of the supervision of the teachers by the Education Department. I find it quite amazing that teachers could absent themselves so regularly from the school. One can only trust that their pay was adjusted accordingly.
I am satisfied that this course of action, namely an originating summons under s 155(4), is an appropriate course of action as the plaintiffs are not claiming simply damages, just orders to rectify the situation and this is the only way such orders can be obtained. Also, the matter had to be brought on expeditiously in view of the fact that we are over a month into the school year and therefore this matter was an urgent matter and I refused to grant any adjournments.
I am satisfied that there can be no great difficulties or disturbance to the Education System and Policy if I grant the orders sought. There are apparently gaps in the school grades at the school so there will be no clogging up of the intake or advancement of the students if I order that the students be allowed to repeat.
As for the school fees: as the Education Department would have saved through the deductions from the salaries of the teachers involved for their failure to attend work, there must be ample savings to assist with the payment for this repeat for this year. In effect, because of the failure of the Department to provide teachers or to supervise properly the teachers, the students paid fees for nothing and may be entitled to have a return of their fees. Instead, those fees they have paid should now be reimbursed to the school for the current year for the respective students.
I order that the students listed in the annexures to the affidavit of Michael Nii dated 24 January 1990 be allowed to repeat their grades in the 1990 school year.
I order that the State, through the Provincial Education Board of the Western Highlands Province, pay the school fees for those students for the repeat year.
I order the State to pay the plaintiff’s costs in this matter.
Orders accordingly
Lawyers for the plaintiff: Marat & Co.
Lawyer for the defendants: State Solicitor.