N5446
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 303 OF 2013

THE BOARD OF MANAGEMENT, HOLY SPIRIT PRIMARY SCHOOL
Plaintiff

V

MOSES SARIKI, DIRECTOR, MADANG PROVINCIAL EDUCATION OFFICE
First Defendant

MOSES GABUOGI
Second Defendant

MADANG PROVINCIAL EDUCATION BOARD
Third Defendant

Madang: Cannings J
2013: 30 September, 25 October, 8, 11, 15 November,
14 December

EDUCATION – role of Board of Management of primary school – roles of Provincial Education Board, Teaching Service Commission – challenges to teacher appointments.

The second defendant had been the Head Teacher of a primary school for a number of years and at the end of 2012 made it known that in 2013 he would be retiring. In February 2013 the Provincial Education Board appointed someone else to the position of head teacher and appointed the second defendant, who by then had changed his mind about retirement, to a teaching position at another school, which was lower in classification than the position he held at the primary school. The second defendant appealed against the Provincial Education Board's decision to the Teaching Service Commission, which upheld the appeal and directed the Provincial Education Board to retain him as Head Teacher at the primary school. The Provincial Education Board implemented the Teaching Service Commission's decision and reinstated the second defendant as Head Teacher. The Board of Management of the school was aggrieved by the Provincial Education Board's decision and argued that the person originally appointed by the Provincial Education Board should be the head teacher. The Board of Management's view was that the second defendant had announced at the end of 2012 that he would be retiring in 2013 and that he had been at the school a long time (too long), that his management of the school was no longer of a high standard, that the person originally appointed by the Provincial Education Board to replace him had the confidence of the Board of Management, that confusion amongst the teaching staff had impaired the educational welfare of the students and that the second defendant had reached the statutory retirement age of 60. The Board of Management commenced proceedings in the National Court, seeking declarations and orders that the third defendant's decision to accept the decision of the Teaching Services Commission was wrong in law. The defendants raised some preliminary issues, viz that (a) the plaintiff has no standing to bring these proceedings as it is not a legal entity; (b) the Teaching Service Commission, whose decision is being challenged, has not been joined as a party, therefore this case should be dismissed; (c) the proceedings should have been initiated by originating summons under Order 16 of the National Court Rules, not by originating summons under Order 4.
 
Held:

(1)	The Board of Management of a school is an entity capable of commencing legal proceedings that concern the management and control of the school, including teacher appointments.

(2)	It was desirable but not necessary for the Teaching Service Commission to be a party to these proceedings.

(3)	It was desirable, but not necessary, for the plaintiff to have commenced these proceedings under Order 16 of the National Court Rules.

(4)	It is not the business of the National Court to hear argument about the merits of particular teacher appointments.

(5)	The plaintiff failed to prove that the decision-making process, which culminated in the reappointment of the second defendant, was affected by any error of law.

(6)	In particular the plaintiff failed to prove that the second defendant had reached the statutory age of retirement.

(7)	All relief sought by the plaintiff was refused.

Cases cited

The following cases are cited in the judgment:

Galem Falide v Registrar of Titles and The State (2012) N4775
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
Telikom PNG Ltd v ICCC (2008) SC906
The State v James Yali (2005) N3014
Tony Waterupu Aimo v Ezekiel Anisi (2012) N4870
Young Wadau, Chairman of the Board of Governors, Tusbab Secondary School v Rose August, Acting Chairman, Teaching Service Commission (2009) N3614

ORIGINATING SUMMONS

This was an application for declarations and orders regarding a teaching position at a school.

Counsel

T M Ilaisa, for the plaintiff
G Haumu, for the defendants

14th December, 2013 

1. CANNINGS J: A controversy has occurred during 2013 concerning the position of Head Teacher at Holy Spirit Primary School, Madang. The second defendant Moses Gabuogi is a long-serving teacher by profession and he has been the Head Teacher (Headmaster) at Holy Spirit for a number of years and at the end of 2012 made it known that in 2013 he would be retiring. 

2. In February 2013 the Madang Provincial Education Board appointed someone else, Severinus Kelly, to the position of Head Teacher at Holy Spirit, and appointed Mr Gabuogi – who by then had changed his mind about retirement – to a teaching position at another school, Jomba Primary School, which was at a lower classification than the position he held at Holy Spirit. 

3. Mr Gabuogi appealed against the Board's decision to the Teaching Service Commission which on 20 March 2013 upheld the appeal and directed the Provincial Education Board to retain him as Head Teacher at Holy Spirit. The Provincial Education Board implemented the Teaching Service Commission's decision and reinstated Mr Gabuogi as Head Teacher. 

4. The Board of Management of the school is aggrieved by the Provincial Education Board's decision and argues that Mr Kelly should be the Head Teacher. The Board of Management's position is that Mr Gabuogi had announced at the end of 2012 that he would be retiring in 2013, that he had been at the school a long time (too long), that his management of the school was no longer of a high standard, that the person (Mr Kelly) appointed by the Provincial Education Board to replace him had the confidence of the Board of Management, that confusion amongst the teaching staff had impaired the educational welfare of the students and most importantly, that Mr Gabuogi had reached the statutory retirement age of 60.

5. The Board of Management commenced proceedings in the National Court, seeking declarations and orders that the decision of the Provincial Education Board to accept the decision of the Teaching Service Commission was wrong in law and is null and void and that Mr Gabuogi be "statutorily retired". The defendants raised some preliminary issues, viz that (a) the plaintiff has no standing to bring this proceedings as it is not a legal entity; (b) the Teaching Service Commission, whose decision is being challenged, has not been joined as a party, therefore this case should be dismissed; (c) the proceedings should have been initiated by originating summons under Order 16 of the National Court Rules, not by originating summons under Order 4.

ISSUES

6. Four major issues have emerged:

1	Do the preliminary issues raised by the defendants warrant dismissal of the proceedings?

2	Does the Court have jurisdiction to consider the merits of the decision regarding the appointment of the Head Teacher?

3	Has the plaintiff proven any error of law in the decision making process?

4	Has Mr Gabuogi reached the statutory retirement age?

1	DO THE PRELIMINARY ISSUES RAISED BY THE DEFENDANTS WARRANT DISMISSAL OF THE PROCEEDINGS?

(a)	Does the plaintiff have standing?

7. Boards of Management of primary schools are established under the Education Act 1983. They have a wide range of important functions prescribed by Section 62 (functions of boards of management), which states:

Subject to this Act, a Board of Management is immediately responsible within the limits of funds and other resources available to it—

(a)	for the planning for, and the provision and maintenance of, school buildings, teachers' houses and ancillary facilities as required; and

(b)	for ensuring the availability of adequate housing for teachers; and

(c)	for the enrolment of pupils; and

(d)	within the general framework of policy established under this Act and the philosophy of the education agency conducting the pre-school, community school, elementary school, primary school or vocational centre—

(i)	for determining the aims and goals of that school or centre; and

(ii)	for supervising the achievement of those aims and goals; and

(e)	for the making of rules for the discipline of students including the punishment by suspension, expulsion or the provision of work or services; and

(f)	for the suspension or expulsion of students for breaches of rules made in accordance with Paragraph (e); and

(g)	for such other matters in relation to the National Education System as are prescribed by or under this Act or any other law relating to education matters.

8. Though a Board of Management is not a corporation it is nevertheless an identifiable legal entity, created under a statute, and it has by the very nature of it statutory functions a legitimate interest in teacher appointments at the school for which it is responsible (Young Wadau, Chairman of the Board of Governors, Tusbab Secondary School v Rose August, Acting Chairman, Teaching Service Commission (2009) N3614). 

9. The Board of Management of a school is an entity capable of commencing legal proceedings that concern the management and control of the school, including teacher appointments. I find that the Board of Management of Holy Spirit has sufficient standing to commence these proceedings. 

(b)	Should the Teaching Service Commission have been a party? 

10. I agree that it was desirable for the Commission to have been joined to these proceedings as a defendant. But no motion for joinder has been filed. I am presuming that the Commission would have knowledge of proceedings such as this, but has decided not to apply to be joined. It is not necessary for the Commission to be a defendant. The fact that the Commission is not a party is not a good reason to dismiss the proceedings. 

(c)	Should the proceedings have been commenced under Order 16?

11. Mr Haumu submitted that the plaintiff should have been required to obtain leave of the Court before making the application for orders and declarations of the sort it is seeking, as it is really asking the Court to judicially review the decision of public authorities under provisions of statutes. The argument is that this a judicial review dressed up as a normal originating summons filed under Order 4 of the National Court Rules; and by filing the proceedings under Order 4 the plaintiff has evaded the requirements of Order 16 including the requirements to establish a sufficient interest in the decisions to be reviewed and to establish an arguable case before the matter goes to trial.

12. I agree that the case could properly have been commenced under Order 16 but I do not agree that it was mandatory to commence the proceedings under Order 16. The Supreme Court made it clear in Telikom PNG Ltd v ICCC (2008) SC906 that a party wishing to challenge the decision of a public authority must use Order 16 if orders in the nature of prerogative writs such as mandamus, prohibition, certiorari or quo warranto are sought. If, however, only an injunction or declaration is sought, the plaintiff has a choice: Order 4 or Order 16 can be used. Here the plaintiff does not seek any of the prerogative writs. Only declarations and orders are sought. Therefore the proceedings have not been improperly commenced under Order 4. There is no abuse of process.

13. None of the defendants' preliminary arguments warrant summary dismissal of the plaintiff's case. 

2	DOES THE COURT HAVE JURISDICTION TO CONSIDER THE MERITS OF THE DECISION REGARDING THE APPOINTMENT OF THE HEAD TEACHER?

14. This was not expressly raised by any of the parties but I thought it useful to state it as an issue because much of the evidence put before the Court was to do with the merits of the decision to reinstate Mr Gabuogi as Head Teacher and the rights and wrongs of the conduct of Mr Gabuogi and his supporters and the integrity of the members of the Board of Management. 

15. For example, Jason Aisi, a teacher at Holy Spirit, testified for the plaintiff that there has been little maintenance of the school infrastructure for many years and appears to hold Mr Gabuogi responsible for this. William Malauling, Deputy Headmaster at Holy Spirit, testified that the situation at the school was very tense in April 3013 and one night he was verbally abused and threatened in a very serious way by Mr Gabuogi's supporters. Mr Thomas More Ilaisa wore many hats in this case; probably too many, however as no issue was taken by the defendants, I decided that in the interests of getting the case resolved quickly, I would let the issue of apparent conflicts of interests pass. Mr Ilaisa is the chairman of the Board of Management of Holy Spirit Primary School. He was also the counsel for the plaintiff. He also became a witness by swearing an affidavit that was admitted into evidence. In the affidavit Mr Ilaisa makes serious allegations of an assault by Mr Gabuogi and his son on the Parish Priest, Father Elias, on 21 April 2013. 

16. Mr Gabuogi gave evidence about his experience and credentials. He has been a headmaster of various schools since 1980. In 1990 he was appointed headmaster of Holy Spirit. He states that since his appointment the accounts of the school have always been audited by the Provincial Auditor. At the end of each year the school has always been left with a surplus of funds. As an example he cites 2012 where the school had a surplus of K152,000.00 which was brought forward to the 2013 school year. He states that the Measurement and Standards Unit of the Division of Education, Madang carried out two audit inspections on his performance as the headmaster to determine his professional competence level. One was done in 1995 and the other in 2004. Both audits confirmed him to his EO 7 level and the 2004 report further recommended him for an EO 8 level position. Since becoming headmaster of Holy Spirit the school has come to be regarded as the best in the province. In 2002 the Board of Management decided to build a new administration block and two new teachers houses to replace the ones that were in a waterlogged area. Under the guidance of the then Parish Priest Fr Joe Fosner the school invested a total of K120,150.03 into a BSP account in Mt Hagen. He states that in 2010 the Board of Management decided to recall this investment to build the new administration block and two teachers houses. Mr Gabuogi is of the view that these funds have not been properly accounted for. He seems to think that he has trodden on too many toes about this money and this might explain why he has fallen out of favour with the Board of Management and the Parish Priest. 

17. All of this evidence is fascinating but it is largely irrelevant to the legal issues before the Court. It is not the business of the National Court to hear argument about the merits of particular teacher appointments and the personal conduct of the parties or allegations of financial impropriety. 

3	HAS THE PLAINTIFF PROVEN ANY ERROR OF LAW IN THE DECISION MAKING PROCESS?

18. The short answer to this question is no. Mr Gabuogi, quite properly, appealed to the Teaching Service Commission under Section 13 of the Teaching Service Act against the decision of the Provincial Education Board to transfer him to a lower position at Jomba Primary. It was in effect a demotion. The Commission found that no good reason existed for such drastic action and emphasised that Mr Gabuogi held a tenured position at Holy Spirit, a fact that was apparently ignored by the Provincial Education Board. The decision of the Commission was, in my assessment, a logical and reasonable one, and the plaintiff raised no clear and sensible reason to set it aside. It is useful to set out Section 13 (general rights of appeal), which states:

(1)	Where—

(a)	a member of the Teaching Service is aggrieved by a decision or action of an education authority (other than the Commission) on the ground that it was unfair or unreasonable; and

(b)	no other provision is made by this Act for an appeal in the circumstances of the particular case; and

(c)	the decision or action is not expressed by this Act to be final or not appealable,

the member may appeal to the Commission against the decision or action.

(2)	Where—

(a)	an education authority (other than the Commission) or a member of the Teaching Service is aggrieved by a decision or action of the Commission on the ground that it was unfair or unreasonable; and

(b)	no other provision is made by this Act for an appeal in the circumstances of the particular case; and

(c)	the decision or action is not expressed by this Act to be final or not appealable,

the member or authority may appeal to the Minister against the decision or action.

(3)	The Commission or the Minister, as the case may be, shall make due inquiry and may give any direction and take any action, not inconsistent with this Act or any other law, that it or he thinks necessary or desirable to remedy the situation.

(4)	A direction shall not be given or action taken under Subsection (3) that would adversely affect the rights of, or impose liabilities on, a member of the Teaching Service.

19. It can be seen that Mr Gabuogi, being aggrieved by the decision of the Provincial Education Board to appoint him to Jomba Primary on the grounds that it was unfair and unreasonable, properly exercised his right to appeal to the Commission under Section 13(1). 

20. The Commission made due inquiry into the matter and concluded that Mr Gabuogi had been dealt with unfairly and unreasonably and then gave a direction to the Provincial Education Board to reinstate him as Head Teacher at Holy Spirit, that being the direction that the Commission thought necessary or desirable to remedy the situation. All of that was done under Section 13(3). 

21. The Provincial Education Board could have under Section 13(2) appealed to the Minister against the Commission's direction, but chose not to do so. It therefore had no choice but to implement the direction. The Provincial Education Board accepted the Commission's direction, implemented it immediately, and that is how Mr Gabuogi ended up back at Holy Spirit occupying the position that had been his for the previous 22 years. Nothing was amiss in the decision-making process that led to that situation. 

22. The plaintiff has thus failed to prove that the decision-making process, which culminated in the reappointment of the second defendant, was affected by any error of law.

4	HAS MR GABUOGI REACHED THE STATUTORY RETIREMENT AGE?

23. This is the most contentious issue. It is agreed that the compulsory retirement age of a teacher in the Teaching Service is, under Section 119 of the Teaching Service Act, 60 years. Section 119 (age of retirement) states:

(1)	A member of the Teaching Service who has attained the minimum retiring benefits age is entitled to retire from the Teaching Service if he desires to do so.

(2)	In the case of a member of the Teaching Service who has reached the maximum retiring benefits age, the Commission may—

(a)	retire him at any time; or

(b)	advertise the position that he occupies with a view to retiring him and filling it with another member.

(3)	A member of the Teaching Service is not entitled to remain within the Service after he has attained the age of 60 years.

24. The plaintiff argues that the records of the Catholic Education Agency in Madang show that Mr Gabuogi attained the age of 60 years in September 2012. Mr Tulemanil of the Agency has annexed to his affidavit a copy of a birth certificate that shows that "Chris (Moses) Gabougi" [sic] – which he believes is the second defendant, Mr Gabuogi – was born in Boiken, Wewak District, East Sepik Province, on 29 September 1952. Mr Tulemanil further produced evidence that Moses Gabuogi married his wife at Boiken Parish, Wewak, East Sepik Province. 25. That evidence underlies the plaintiff's case that Mr Gabuogi has passed the statutory retirement age and that he should by statutorily retired by order of the Court.

26. Mr Gabuogi does not agree. He has given evidence based on what his late father told him many years ago that he was born ten years after the end of the Second World War, 16 September 1945. In those days accurate records of births were not kept, so he has always relied on what his father told him, which included the story that he was born in a clinic at Lumi, West Sepik Province and that he was baptised with the name Moses Loun Gabuogi at Lumi. Mr Gabuogi testified that he married his wife, Francisca Mariambun, on 20 September 1980 at the St Francis Asisi Catholic Church, Bundi, Madang Province, in a ceremony conducted by Fr Victor D'sa SVD. He annexed a copy of the marriage certificate which supports his averments. He states that his marriage did not take place at Boiken. 

27. I find that Mr Gabuogi's evidence is reliable and convincing. The plaintiff's evidence is the opposite. There is a basic principle of litigation that must be invoked here: he who asserts must prove (Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Shaw v Commonwealth of Australia [1963] PNGLR 119, Galem Falide v Registrar of Titles and The State (2012) N4775). It is the plaintiff that is asserting that Mr Gabuogi is too old, and the plaintiff has failed to prove that he is in fact over the age of 60 years.

28. So, how old is Mr Gabuogi? Having accepted his evidence about what his father told him – and acknowledging that it is strictly speaking based on hearsay – but taking into account that it is the best evidence available, and that the evidence to the contrary is unreliable, I determine that his date of birth is 1 July 1955, which makes him 58 years of age.

29. If I had considered that there was insufficient evidence to make that determination I could have (as pointed out in The State v James Yali (2005) N3014 and Tony Waterupu Aimo v Ezekiel Anisi (2012) N4870) invoked Section 63 (age) of the Evidence Act, which states:

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

30. Having seen Mr Gabuogi, I would have reached the same conclusion: his date of birth is 1 July 1955. He is presently aged 58. He will not reach compulsory retirement age until 1 July 2015. 

CONCLUSION

31. No good reason has been put forward by the plaintiff to warrant the orders and declarations sought. Mr Gabuogi is entitled to remain as Head Teacher of Holy Spirit Primary School. Costs would usually follow the event, but as the defendants, including Mr Gabuogi, have been represented by the Provincial Legal Officer it is appropriate that the parties bear their own costs.

32. Now that this case has been resolved all persons involved should put personal animosities aside, or better still extinguish them, and work together for the betterment of the School and give paramount consideration to the education and welfare of the students. 

ORDER

(1)	All relief sought in the originating summons is refused.

(2)	The parties will bear their own costs.

Ordered accordingly.
________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiff 
Legal Service Unit, Madang Provincial Administration: Lawyers for the Defendants