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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 42 OF 2007
BETWEEN:
GEOFFREY DADEMO
Plaintiff
AND:
BLAKE ANGORO
First Defendant
AND:
WINDSOR ATARAPA
Second Defendant
AND:
ORO PROVINCIAL EDUCATION BOARD
Third Defendant
AND:
MONTY DERARI
Fourth Defendant
AND:
ORO PROVINCIAL ADMINISTRATION
Fifth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
Popondetta: Sakora J
2007: 23 March &
27 October
PRACTICE AND PROCEDURE – Application for declaratory orders – Originating summons and notice of motion – Judicial review – Application for leave – O 4 r 1, r.2, r.37 & r.38; O 16 r 3 National Court Rules.
Practice and Procedure – Appeal – Statutory provision for – Exhaustion of before judicial review – Appointments and promotions – Advertisement for – Teachers and principals – Secondary schools – Powers, functions, duties and responsibilities – Authorities under the National Education System – National Education Board – Provincial Education Boards – Teaching Service Commission – Constitutional rights – Principles of natural justice – Procedural fairness – Education Act 1983, ss 3, 5, 10, 17, 18, 19, 26, 31, 36 & 51; Teaching Service Act 1988, ss 13, 53, 59 & 71; Organic Law on Provincial Governments and Local-level Governments, ss 6 & 42; Constitution, ss 37(4)(a), 37(10) & 59.
Counsel:
R Uware, for the Plaintiff
G Emilio, for the Defendants
27 October, 2007
1. SAKORA J: Introduction: This is an application seeking certain declaratory orders in respect of the position of principal of the Popondetta Secondary School. And it relates directly to the purported exercise of statutory powers by the Provincial Education Board (PEB) on 2 December 2006, which appears to have been followed up with a subsequent purported exercise of statutory powers in its "second meeting on 15 January 2007 . . . ."
2. The purported exercise of statutory powers by the PEB followed what appeared to be an equally purported exercise of statutory powers by a committee of the PEB on 30 November 2006. That meeting appears to have involved the appointments and postings of teachers for the 2007 school year.
3. This application is concerned with the decision of the PEB to appoint the first defendant to the position of principal of the school upon the "relegation" of the plaintiff, the incumbent acting principal, to the lower status and position of deputy principal.
4. The plaintiff is a secondary school teacher by profession, and, between 2003 and the date of the so-called "relegation", had been occupying the professional and administrative post of principal on an acting basis. He held and holds the professional substantive classification as EO - 7.
5. The first defendant, a secondary school teacher by profession, was, at the time of the purported changes giving rise to this proceedings, occupying the position of deputy principal. His designated substantive professional classification was and is at EO-6 level. Needless to say, the first defendant enjoyed both professional and administrative classifications lower in status than that enjoyed by the plaintiff at the time in question.
6. At 2 December 2007 meeting when the PEB purportedly exercised statutory powers affecting the rights and interests of the plaintiff as complained of here, the first defendant was a member of the PEB, and in attendance. He, therefore, participated in the purported decision-making process that favoured his cause to the prejudice and detriment of the plaintiff.
7. Except for the 23 January 2007 letter from the Chairman of the PEB to the Chairman of the TSC advising of the purported 15 January 2007 "second meeting", which was said to have resulted in changes to the position of principal, there were and are no other details about such a meeting. For instance, no official minutes of the meeting such as would properly demonstrate the names of members in attendance (and any absences and apologies in the usual fashion), together with the agenda items, is furnished.
8. No formal advice appears to have been conveyed to the TSC about the outcome of the 2 December 2006 meeting of the PEB, with the customary details of such a statutory meeting accompanying it.
9. The plaintiff’s claim
10. Mr Uware of counsel for the plaintiff moved the court on the plaintiff’s notice of motion dated and filed 6 February 2007. The motion seeks the following reliefs:
2. The Applicant is still the Acting Principal of Popondetta Secondary School.
without fear or intimidation.
11. Counsel referred the court to and relied on the affidavit of the plaintiff sworn and filed 6 February 2007. In his depositions, the plaintiff traces the history of this case commencing with the purported exercise of statutory powers by the PEB in November and December of 2006.
12. In support of his claim, the plaintiff annexes the following documents to his affidavit:
13. It is the plaintiff’s case that, following the surprise display of positions to be held by the teachers at the Popondetta Secondary School subsequent to the purported meeting of the PEB at the end of 2006 (supra), he raised his concerns with the Teaching Service Commission (TSC) in Port Moresby, travelling over there at his own expense. In this respect, Mr Dademo wrote to the TSC on 27 December 2006, appealing against the purported decision of the PEB directly affecting the position of principal at the school.
14. The TSC considered the situation as presented by the plaintiff, and, on 12 January 2007, Commissioner Pearson wrote to the PEB through the Provincial Education Advisor (PEA) in the following terms (omitting the formal parts):
I refer to Mr. Dademo’s letter of appeal dated 27th December 2006 concerning changes to the acting appointment to the Principal’s Position at Popondetta Secondary School.
Mr. Dademo as the substantive EO 7 officer has preference for the appointment to the position of principal over either of his deputies or any other person who is only substantive EO 6.
You are advised to not make changes to acting appointments that will clearly lead to appeals which the appellant is sure to win.
Your action in appointing a person of lower substantive status over Mr. Dademo will seriously disadvantage that person.
You are hereby directed not to make any changes to the appointment to the principal and deputy principals of Popondetta Secondary School that will upset the current "Status quo".
Yours sincerely,
Sgd. Michael R. Pearson
Commissioner Operations – TSC
15. This letter of advice and direction was minuted to the plaintiff and the two deputy principals. The plaintiff duly responded to the Chairman’s letter on 22 January 2007 (Annexure "D" to his affidavit), wherein, inter alia, he advised of the TSC advice and directives to the PEB (supra) and his intention to abide by the TSC directives in preference to those of the PEB.
16. At that stage, apart from the "Hand-Over-Take-Over" letter of 19 January 2007, the plaintiff had not been formally advised of the PEB decision regarding the position of principal, and the reasons for this, pursuant to its purported meeting of 2 December 2006.
17. On 23 January 2007, the Chairman of the PEB wrote to the Chairman, TSC, advising, inter alia, of a meeting of the PEB " in its second meeting on the 15 January, 2007. . .", appointing the first defendant to the principal’s position and relegating the plaintiff to the position of deputy principal. The letter then embarks upon a detailed recital of instances (15 in all) of alleged financial mismanagement on the part of the plaintiff, to justify the action and decision of the PEB. (emphasis mine)
18. Once again, this action is despite, and subsequent to, the directives of the TSC in its letter of 12 January 2007 (supra). Furthermore, there is no formal acknowledgement of receipt of the TSC letter by the PEB. Instead of a formal direct letter to the plaintiff about a purported "second meeting", he is one of six recipients who were copied that letter to the Chairman of the TSC, the letter that publicly alleged that he was or had been:
. . . negligent, careless in the discharge of his duties and that he was inefficient or incompetent from causes within his control as principal . . .
19. It is the plaintiff’s further case that, despite the directives from the TSC, the Chairman of the PEB, the second defendant, wrote to the plaintiff on 19 January 2007, directing him to attend to the "Hand-Over-Take-Over" before 4.06 pm that very day. The directive further required the plaintiff in the following terms:
All necessary documents, keys, financial records, cheque book/s (sic) and other relating (sic) documents must be handed over as well. There must also be a financial report for any transactions during the 2006/07 Christmas holiday (sic).
20. There is no material before me to demonstrate that any disciplinary charges had been preferred against Mr Dademo before the PEB letter of 23 January 2007 to the Chairman, TSC. If there had been, there is no material before me to demonstrate that these charges had been properly given notice of to the plaintiff, and at the same time according him a proper opportunity in the usual way to respond to these charges before any disciplinary action was undertaken.
21. There is no material before me also to demonstrate that the so-called "second meeting on 15 January, 2007 . . ." ever took place. Thus, the court does not know who attended and how the meeting proceeded.
22. Be that as it may, the plaintiff responded to the PEB letter to the TSC in an exhaustive way to, first, the changes to the position of principal that the PEB purportedly made, and, secondly, the serious issues of financial mismanagement and record-keeping that had been levelled against him tangentially, through the TSC. This was done on 14 February 2007.
The case for the defendants
23. A joint notice of intention to defend was duly filed on behalf of all five defendants by their lawyers on 12 March 2007. Before this, the first defendant, Mr Blake Angoro, filed his own notice of intention to defend on 1 March 2007, followed by his own defence on 8 March 2007.
24. In his individual defence, the first defendant raises what appear to be challenges to the competency of the plaintiff’s proceedings. First, there is the contention that there is non-compliance with the requirement to give notice under s 5 Claims By and Against the State Act. Secondly, it is contended that the plaintiff’s action being "in essence a Judicial Review of the decision of the Oro Provincial Education Board, and as such the plaintiff failed to seek leave of the National Court as prescribed under Order 16 rules 3 and 4 of the National Court Rules".
25. Individual defences in respect of all other defendants were filed on 14 March 2007. These do not appear to have been filed by their lawyers. Whilst uniformly contending the same issues of competency raised in the defence of the first defendant, the other defendants raise the additional issues of statutory compliance, in relation to appeals and the powers of appointment of teachers.
26. That is to say, it is the contention of the defendants, first, that s 71 Teaching Service Act procedure was not followed by the plaintiff to appeal the decision of the PEB to the TSC, and, secondly, that s 39 Teaching Service Commission Act (sic) vests power in the PEB to make appointments to positions in provincial high and technical schools.
27. The defendants then filed by themselves a notice of motion on 14 March 2007 seeking summary relief. They sought to have the plaintiff’s proceedings struck out on the grounds that:
The plaintiff did not follow proper and legally constituted procedures in appealing against his appointment made by the Provincial Education Board.
28. In support of their joint application to have the plaintiff’s action struck out, the defendants purported to swear joint affidavits and filed these. These purported affidavits were intended to annex the documents that they were relying on in their joint defence.
29. The first point to make about the affidavits is that, except for the one sworn and filed by Mr Angoro (14 March 2007), all the others filed as joint affidavits are defective and flawed. Parties to legal proceedings are not permitted to file a joint affidavit. Affidavits are intended to be sworn depositions of evidence, and, thus, if there are several parties, each must swear a separate affidavit. This makes sense from appreciating that parties cannot go into the witness box at the same time and give a joint sworn oral evidence.
30. The second point is that, the purported joint affidavits were never sworn before any Commissioner for Oaths. Consequently, the various depositions that were intended to be evidence, together with the accompanying annexures, would have to be rejected as inadmissible.
31. The defendants’ notice of motion is defective also, for the simple reason that it failed to comply with the requirements of the NCR for statutory or procedural authorities to be expressly stated or cited in support of assertions and contentions. What principles of law or procedure were relied on to seek summary relief: strike out the plaintiff’s application?
32. And here were the defendants alleging and asserting that the plaintiff had not followed proper and legally constituted procedures in appealing. It is a bit like the pot calling the kettle black. There is a useful advisory from Moral Rearmament that says that if you point a finger (blaming and censorious) at someone, there are at least three fingers pointing right back at yourself. One of my all-time favourite advisories with a Biblical origin is the one about casting the first stone.
33. The first defendant also filed an affidavit deposing to his appointment, asserting legality, legitimacy and proper procedures. In the process, he refers to certain documents to substantiate his contentions, but these documents are not annexed to his affidavit in the usual way. Be that as it may, he seeks the indulgence of this court to declare him the duly appointed acting principal of the school. This declaratory relief is, of course, not sought in the notice of motion filed by the defendants. It is raised only in his affidavit, thereby offending against the rules.
The Law
34. First, in relation to matters raised in objection to the competency of the plaintiff’s application.
35. The plaintiff is not seeking judicial review of the decisions either of the PEB or the TSC, such that he would need to apply for leave pursuant to O 16 r 3 National Court Rules (NCR). In relation to the 2 December 2006 decision of the PEB, he has properly availed of the appeal procedures under s 59 (1) Teaching Service Act 1988 (TSA). This appeal was instituted on 27 December 2006, resulting in a decision of the TSC conveyed per its letter of 12 January 2007.
36. The applicant is only seeking enforcement of a decision made in his favour on his appeal. His application pursuant to O 4 NCR is, therefore, proper and correct. This Order is concerned with and makes provisions for Commencement of Proceedings. Rule 1 is in the following terms:
Subject to the provisions of any Act, regulations or rules but without prejudice to Order 8 Rule 38, proceedings in the Court under this Part shall be commenced by writ of summons or by originating summons.
37. There are, therefore, two modes only of commencing proceedings. Rule 2 provides for circumstances which require writ of summons. The plaintiff here chose and used an originating summons, which is provided for under Rule 37, which reads as follows:
An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be by motion. (emphasis mine)
38. Rule 38 (1) demands that a person shall not move the court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service in the proceedings. The plaintiff has availed of, and duly complied with these Rules.
39. The two Supreme Court cases of: Masive v Okuk [1995] PNGLR 106; and, National Executive Council v Public Employees Association of PNG [1993] PNGLR 264, were relied on by the plaintiff. The former case expressed the view that the O 4 NCR procedure should only be used where the facts are not in dispute. Such a situation obtains here. The substance of the facts relied on by the plaintiff are not taken issue with by the defendants. And in the latter case, the court held that there was no abuse of process by choosing O. 4 procedure to seek declaratory orders rather that the judicial review avenue under O. 16 NCR.
40. Instead of rushing to court after the purported exercise of powers by the PEB, he had properly availed of his administrative right under the relevant legislation to appeal to the TSC for his grievance(s) to be addressed and determined by an authority having power and superintendence over him. The offending authority with immediate jurisdiction over him was and is the PEB, which purported to exercise statutory powers that directly and adversely affected his professional and personal rights and interests.
41. It is the law in relation to seeking public law remedies pursuant to O 16 NCR that an applicant aggrieved by a decision of a public authority exercising statutory powers must first avail of and exhaust all other administrative or non-judicial avenues for relief or remedy before finally coming to court. This is one of the well-recognised pre-requisites or requirements for applying to invoke the review jurisdiction of our superior courts. Others are: standing or locus standi; absence of inordinate delay; and an arguable case.
42. Thus, if the applicant came here by way of judicial review under O 16 NCR as the defendants insist, the court would undoubtedly have refused him leave, simply because he had not availed of and exhausted the right to appeal as provided for under the TSA (s 59).
43. It was only after availing of and exhausting the s 59 TSA appeal provision that the plaintiff had the right and standing to seek judicial relief or remedy in the way he has here. He does not come seeking judicial review, but declaration and enforcement of his right. The TSC considered his grievance and confirmed his status which the provincial body refuses to acknowledge, accept and give effect to.
44. It is the defendants who should have properly challenged the decision of the TSC, by application for judicial review, if they were not happy with it. They did not, and, instead, proceeded to ignore the directives that had been issued to them by an authority having jurisdiction over them.
45. In relation to declaratory orders, a proceeding is not defeated if the only relief sought is a declaratory judgment. And a declaration can be granted on a summary application. This plaintiff appealed to the TSC claiming an interest or right that he asserted had been infringed by the PEB. The TSC considered his appeal and decided in his favour. The TSC letter of 12 January 2007 confirmed his right and directed that it be restored to him by the PEB. The PEB has persisted in defying the directives of the TSC. The plaintiff seeks a judicial declaration confirmatory of his professional and administrative status vis-à-vis the Popondetta Secondary School.
46. Even the absence of a cause of action does not necessarily prevent the court from making a declaration: Ainsworth v Criminal JusticeCommission (1992) CLR 564 at 581-582. Another and older High Court of Australia case, Forster v Jododex Australia Pty Ltd (1972) CLR 421, held that there is no need for a declaration to be associated with a claim for substantive relief. There must exist, however, a genuine question on which the declaration is sought, and the issue must exist between the parties.
47. I respectfully adopt and apply these principles as applicable to the circumstances before me now.
48. In respect of the challenge based on the s 5 Claims By and Against the State Act (CBAS Act) argument, the defendants offer no evidence in this respect apart from their mere assertions. The plaintiff has sworn and filed an affidavit specifically on this, deposing to serving a notice on the State. In any case, the Independent State of Papua New Guinea (ISPNG) cannot properly be joined as a party to this proceedings.
49. No national authorities or institutions are made parties here, such that the Independent State would properly be considered or claimed to be vicariously liable. There has, therefore, been a misjoinder, and, in the exercise of the inherent jurisdiction of the court, I order that it be removed from the proceedings as a party.
50. The plaintiff’s claims are legitimately instituted against the provincial authorities. Under s 6 Organic Law on Provincial Governments and Local-Level Governments (the Organic Law), these governments have and enjoy legal capacity as provided in the following terms:
A Provincial Government or a Local-level Government –
(a) may acquire, hold and dispose of property of any kind; and
(b) may sue and be sued,
And a provincial law or a local-level law may make provision for and in respect of the manner and form in which each respective government may do so.
51. As a consequence of this provision, the ISPNG cannot properly be said to be vicariously liable for the acts and omissions of provincial authorities and officers such as the five defendants.
52. In relation to the operation and appropriateness of the legislation pertinent to the National Education System (NES) at the national and provincial levels, there is no better guide than that provided by the Education Act 1983 and the Teaching Service Act 1988, and the Regulations promulgated under these. The legislation set out, in no uncertain terms, the hierarchy of educational and administrative authorities that are created, and vested with powers, for the provision of educational and ancillary services and activities.
53. The Education Act 1983 is an Act to provide for the National Education System (NES) and to make provision for:
(i) national responsibility; and
(ii) provincial responsibility,
in the field of education, having regard to the Organic Law on Provincial Governments and Local-level Governments; and for compliance with Section 52 of that law, and for related purposes.
54. The NES is established by s 3, and it is administered by the National Government and by Provincial Governments. Sub-s (2) provides that the NES consists of – (a) a national component comprising national institutions; and (b) provincial components comprising member schools other than national institutions in each province, with which is associated the Teaching Service regulated by the TSC. Sub-s (3) provides that the NES is to be administered in accordance with, and for the objects and purposes expressed in –
(a) this Act; and
(b) any other laws of the Parliament relating to education matters; and
(c) provincial education laws in relation to a matter within Section 42 of the Organic Law on Provincial Governments and Local-level Governments.
55. And s 42 of the OL provides for the law-making powers of provincial legislatures. In relation to education, provincial legislatures have the power to make laws in respect of "primary, secondary, technical and vocational education, but not curriculum."
56. Under s 5 Education Act the administration of the NES is vested in the following education authorities, in descending order of prominence:
(a) the Minister; and
(b) the National Education Board; and
(c) the Departmental Head; and
(d) the Teaching Service Commission; and
(e) Provincial Governments; and
(f) Education Boards; and
(g) Local-level Governments; and
(h) education agencies; and
(i) the governing bodies of member schools.
57. It is obvious from this hierarchical list that the TSC has precedence over the two provincial education authorities of provincial governments and the education boards.
58. PEBs are delegates, by virtue of s 26, of the National Education Board (NEB) whose constitution, functions, responsibilities and powers (in relation to national institutions) are specifically provided under s.10, s.17, s.18 and s.19 respectively. Sections 31 to 50 make specific provisions relating to PEBs. Section 36(1) sets out the functions of PEBs. Amongst other functions, a PEB, with due regard to the expressed wishes of teachers and education agencies concerned, has direct responsibilities for members of the Teaching Service in relation to their –
(i) appointment and promotion; and
(ii) transfer from one school to another; and
(iii) discipline,
in member community schools, vocational centres and provincial high schools within . . . the province, in accordance with the Teaching Service Act 1988. . . .
59. In the exercise and performance of its powers and functions, the Education Board shall, as appropriate, consult and co-operate with, and tender advice to, Provincial Governments, Local-level Governments, the Teaching Service Commission, education agencies and governing bodies of schools in the . . . province on matters on which they or any of them have common interests: see, sub-s (2). This provision makes it abundantly clear that a PEB has no absolute powers in relation to matters such as those before this court.
60. In the matters going to the TSC by way of appeal by Mr Dademo, both the PEB and the TSC had, and have still, a common interest, as envisaged by the provision. That is, the purported promotion of the first defendant and the consequent "relegation" of the plaintiff in respect of the position of principal.
61. Constitutionally, Papua New Guinea (PNG) is a unitary state with an element of decentralization, rather than a strict federal system in the United States or Australian models, where the constituent parts, the states, enjoy a greater degree of freedom and autonomy.
62. In this respect, authorities created under these two legislation have specified and specific roles to play, not in contradiction with provincial authorities but in co-operation with them. Thus in the scheme of legislation, the TSC created under the Teaching Service Act, amongst other responsibilities, is directly responsible for all teachers and teaching administrators throughout the country. As demonstrated above (pursuant to s 5), in the hierarchy of authorities under the NES, the TSC is superior in duties and responsibilities to both a PEB and a provincial government.
63. In respect of the issues raised in this case, the preamble to the Teaching Service Act 1988 reads as follows:
Being an Act to make provision for –
(a) the Teaching Service Commission; and
(b) the terms and conditions of service of members of the Teaching
Service; and
(c) other matters relating to the welfare and employment of teachers,
(d)
and for related purposes.
(underlining mine)
64. Section 2 of the Act establishes the TSC consisting of three Commissioners appointed by the Head of State, acting on advice.
65. Section 9 of this Act sets out in an exhaustive way the various functions of the Commission. Those of immediate pertinence are in the following terms:
9. Functions of the Commission.
(1) Subject to this Act, the functions of the Commission are –
(a) to exercise a critical oversight of all matters relating to the terms and conditions of service and welfare of members of the Teaching Service; and
(b) to ensure that decisions of other authorities under this Act or the Education Act 1983 do not infringe or abrogate the rights or the conditions of service of members, and where those rights or the conditions are infringed or abrogated –
(i) to give such directions; and
(ii) to take such other action within its power under this Act or
any other law as may be necessary to correct the situation;
(c) . . .
(d) . . .
(e) to determine appeals as provided for by this Act; and
(f) . . .
(g) . . .
(h) . . .
(i) . . .
(j) any other functions that are necessary or convenient for
carrying out, or that are ancillary to, the functions set out in this
subsection.
(2) In the exercise and performance of its powers and functions, the Commission shall, as appropriate, consult and co-operate with, and tender advice to Provincial Governments, the Departmental Head, educational agencies and the Papua New Guinea Teachers’ Association on all matters in which they or any of them have common interest.
(3) . . .
66. A general right of appeal exists under s 13 for any member of the Teaching Service aggrieved by a decision or action of an education authority (other than the Commission) on the ground that it was unfair or unreasonable. Appeal against promotions is available under s 59, and it is convenient and instructive that sub-s (1) of which should be reproduced hereunder, and I do so as follows:
(1) Where a member of the Teaching Service is promoted to a promotional position, any qualified member may appeal, within the prescribed time and in the prescribed manner, against the promotion on the ground that –
(a) the suitability of the appellant was not adequately considered by
appointing authority because –
(i) all evidence was not available; or
(ii) due weight was not given to the evidence,
and his suitability for the position is superior to that of the
promotee;
or
(b) the position was filled by the appointing authority on conditions
other than those advertised under Section 35.
(2) The Committee shall consider the matter and shall -
(a) confirm the promotion; or
(b) cancel the promotion and recommend to the Commission that it
direct the appointing authority to –
(i) appoint a specified appellant to the position;
(ii) re-advertise the vacancy under Section 35.
67. A Teaching Service Appeals Committee (TSAC) is created under s 53 Teaching Service Act. It has jurisdiction over appeals against:
68. All vacant positions in the Teaching Service are required to be advertised by both the NEB and PEBs, inviting persons to apply for appointments to those: s 35 (1) Teaching Service Act (the TSA). Sub-s (2) is in the following terms:
(2) Unless the Commission otherwise approves, all vacant positions
(including all positions filled by acting appointment under Section 71, or by teachers appointed under Section 72) shall be advertised, at least once in each calendar year, in accordance with the succeeding provisions of this section.
(3) A vacant base-level position in a community school shall be
advertised by the Provincial Education Board.
(4) Vacant promotional positions in community schools, and all vacant positions in provincial high schools, technical schools, vocational centres and national institutions, shall be advertised by the National Education Board in the Education Gazette. (my emphasis in bold)
69. "Vacant promotional positions" are such as the present situation with the principal’s position at the Popondetta Secondary School, I would suggest, where there is a vacancy in the substantive post, but its duties and functions are discharged and performed on an acting basis by a member of the service enjoying a lower status or classification. A substantive appointment would have to be made by way of promotion through proper advertisement inviting candidates.
Conclusion
70. The two applicable legislation have been canvassed here to demonstrate, first, the legislative scheme for the nation’s education system; secondly, the appointment or creation of relevant authorities hierarchically; and, finally, the distribution of powers and responsibilities amongst these various authorities.
71. And what becomes obvious from these is that the defendants breached a host of statutory requirements, and, in the process, committed procedural irregularities that resulted in adversely affecting the rights and interests of Mr Dademo.
72. It is obvious that the PEB failed to follow proper procedures in its purported exercise of statutory powers under both the Education Act and the Teaching Service Act. There was no advertisement of a vacancy in the principal’s post. In this respect, there was no consultation and co-operation with the TSC as envisaged. The assertion of so-called power under s 71 of the latter Act completely ignored the requirement of s 35(2). In any case, the 23 January 2007 letter to the TSC is the only time this provision is asserted and relied upon. And that was after the purported exercise of powers by the PEB on 2 December 2006, resulting in the display of teachers postings that provoked the 27 December 2006 letter of appeal to the TSC, and the directions of the TSC to the PEB in that 12 January 2007 letter.
73. The PEB letter of 23 January 2007 to the TSC about a so-called "second meeting on 15 January 2007" is an exercise in misrepresentation and cover-up. After defying the directions of the TSC, thereby demonstrating disregard and disrespect for, and contempt of, the lawful instructions and legitimate directions of a higher authority, the PEB undertook a blatantly dishonest and unconscionable course of action.
74. The attitude and the consequent actions of all the defendants towards the TSC can only be described as defiant, recalcitrant and confrontational. In their misplaced sense of arrogance and self-righteousness, they either forgot or ignored the intent and spirit of the two pieces of legislation that governed them. And that is expressed in the terms consultation and co-operation.
75. The attitude and consequent actions of the defendants towards Mr Dademo, whilst quite properly attracting the same sentiments as towards the TSC, can also be described as being disrespectful, disdainful, inconsiderate, demeaning and inhuman. What they did to him was and is disgraceful. This is certainly not the way to treat a fellow professional. The PEB started using terms such as "relegation" to describe his unceremonious and summary removal.
76. Dictionary definition of the verb "relegate" is: to assign an inferior rank or position. It comes from Middle English to mean: to "send into exile", and is derived from the Latin root: "relegat" or "relegare" meaning "send away". It is an offensive and distasteful term to use to refer to a professional teacher who has served the school, province and country obviously with dedication and distinction.
77. Except for the allegations in respect of financial mismanagement that appear to have been the subject of gossip rather than properly formulated formal disciplinary or criminal charges which would attract the rights and freedoms guaranteed under the Constitution, there were no instances of misdeeds or misconduct that were under consideration before the appropriate authorities at the time.
78. In relation to allegations of criminal nature, Mr Dademo would have been entitled to those protections under s 37 Constitution, prominent of which is the presumption of innocence: s 37 (4)(a). Then there is the right to protection from self-incrimination: s 37 (10). In relation to protection of rights and interests in employment and other situations arising out of exercise of statutory powers, procedures are set down in the statutory instruments concerned, and these only need to be complied with to ensure injustice does not occur.
79. The courts have developed a body of substantive principles of public law to ensure that public bodies such as the PEB here do not exceed or abuse their powers, and that they perform their duties. Thus, the courts will review an exercise of power to ensure that the public body:
(a) has not made an error;
(b) has considered all relevant factors, and not taken into account any irrelevant factors;
(c) has acted for a purpose expressly or impliedly authorized by statute;
(d) has not acted in a way that is so unreasonable that no reasonable public body would act in that way; and
(e) that the public body has observed statutory procedural requirements and the common law principles of natural justice or procedural fairness.
80. These grounds are described in case law as: illegality, irrationality and procedural impropriety.
81. In this case, as well as not following the procedures set down in the Teaching Service Act, for advertisement of vacant positions, making of acting appointments, conducting disciplinary proceedings and, indeed, convening and conducting meetings of the PEB, there was the glaring error of discussing and determining the fate of the acting principal when one of the members present and participating was interested in that job and in fact got the job himself.
82. This is the type of situation that s 59 Constitution has specifically made provisions about. The provision is in the following terms:
59. Principles of Natural Justice
(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for the control of judicial and administrative proceedings.
(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
83. Mr Dademo was definitely denied natural justice. A public body vested with public powers to exercise for the public good, acted as prosecutor, judge and jury. The first defendant, an interested party in ousting the incumbent acting principal who was senior to him in status and occupying that post himself, sat in on that meeting of 2 December 2006. The phrase "Kangaroo Court" describes situations such as this.
84. There was no "second meeting" on 15 January 2007. If there had been, there would be proper record of this. In any case, such a meeting would have taken place after the plaintiff’s appeal to the TSC, ant the TSC properly exercising jurisdiction over his grievance.
85. The court has no problems finding that the plaintiff was denied natural justice by the PEB. To seek justice from that, he properly availed of the right to appeal as provided under the Teaching Service Act. And the TSC considered the appeal and properly decided in his favour.
86. The court, therefore, grants the plaintiff’s application in the terms of his notice of motion, and makes orders as follows:
effect, and to perform his duties and functions without hinderance or intimidation.
Applicant’s costs of and incidental to this
proceedings.
_____________________________________
Public Solicitor: Lawyer for the Applicant
Emilio & Associates Lawyers: Lawyer for the Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2007/67.html