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University of Papua New Guinea v Czuba [2018] PGNC 233; N7308 (28 June 2018)

N7308

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 163 OF 2018

BETWEEN
THE UNIVERSITY OF PAPUA NEW GUINEA
Plaintiff

AND
PROFESSOR FR. JAN CZUBA, Secretary,
Department of Higher Education, Research, Science and Technology
First Defendant

AND
HON. PILA NININGI, Minister for Higher Education,
Research, Science and Technology
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018 : 28^th June

PRACTICE AND PROCEDURE – Section 5 of the Claims By and Against the State Act – Applicability to Declaratory Orders – held not applicable.

Cases Cited

Frederick Martins Punangi, Sir Michael Somare as Chairman of the National Executive Council and the State (2004) N2661
Asiki v Zurenuoc, Provincial Administrator (2005) PGSC 27 (SC 797)
Michael Walapali v Libe Parindali (2007) N3172

Counsel

Mr. Darryl Kamen, for Plaintiff
Mr. Henry Monei, for Defendants
28^th June, 2018

1. DINGAKE J: This is an application, by the defendants to dismiss proceedings brought by the plaintiff on the basis that the said proceedings do not comply with Sections 5(2) (c) (ii) of the Claims By and Against the State Act; alternatively that pursuant to Order 12 Rule 40(1) (a) (b) of the National Court Rules, the proceedings against the defendants be dismissed for failing to disclose a reasonable cause of action and for being frivolous or vexatious.
2. The application was filed with this Court on the 23^rd of April, 2018.
3. By way of back ground, it bears stating that the plaintiff by way of originating summons, filed with this Court on the 21^st of March, 2018, sought wide ranging declaratory orders against first and second defendants, relating, inter alia, to the power of the plaintiff’s Council to select students and grant admission to programmes at the University, without the first and second defendant’s interference.
4. On the same day, the 21^st March, 2018, the plaintiff also sought interim injunction to restrain the first and second defendants, whether by themselves or their servants and agents from withdrawing TESAS Scholarships to any student enrolled at the University that are not on the list published by the Department of Higher Education, Research, Science and Technology, despite meeting the Grade Point Average (GPA) requirements, pending determination of this proceedings.
5. The applicants (defendants) contend that the plaintiff failed to comply with Section 5 of the Claims By and Against the State Act that requires notice to be given in any claims against the State.
6. Section 2(1) and (2) of the Claims By and Against the State Act provides:
   • “(1) A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.
   • (2) The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.”
7. It seems plain enough in reading the aforesaid provisions that:
   1. The Claims By and Against the State Act covers all claims against the State in contract or tort or an application under Sections 57 and 58 of the Constitution.
8. In this case the proceedings sought to be dismissed seek declaratory orders, which cannot, having regard to Section 2(1) and (2) of the Claims By and Against the State Act, amount to a “claim” as contemplated by the Act.
9. It has been held that the words “no action to enforce any claim” under Section 5(1) of the Claims By and Against the State Act, by necessary implication, refer to bringing a suit against the Sate as defined in Section 1, in “any claim” in contract or tort and enforcement of constitutional rights under s.57 and 58 of the Constitution as defined in Section 2 (Frederick Martins Punangi, Hon. Sinai Brown, Sir Michael Thomas Somare as Chairman of the National Executive Council and the State (2004) N2661; Asiki v Zurenuoc, Provincial Administrator (2005) PGSC 27 (SC797).
10. Having regard to all the above, I am of the firm view that the plaintiff is not making any claim against the State for the purposes of the Claims By and Against the State Act, and it was not necessary to give notice under Section 5 of the Act of the intention to make a claim against the State.
11. I also find no merit in the applicant’s motion moved, in the alternative, in terms of Order 12 Rule 40(1) (a) and (b) of the National Court Rules.
12. The plaintiff’s cause of action is clear from a reading of the originating summons and or the affidavits filed in support of the relief sought. Reading the originating summons and or the affidavits filed in support, the plaintiff’s cause of action is, inter alia, that its’ Council is the legitimate authority to select students and grant admissions to programs at the University, but that the first and second defendants are interfering with the powers of the Council in a manner that is illegal. This much is clear from the originating summons alone.
13. In proceedings brought by originating summons it is permissible for the Court to have regard to the supporting affidavits, if necessary and if circumstances so warrant, to establish the cause of action (Michael Walapali v Lipe Parindali (2007) N3172). The above case made it clear that the test as to whether a reasonable cause of action exists or has been established in proceedings commenced by originating summons may require the Court to briefly consider the affidavits that have been filed as the form of the originating process requires the plaintiff to focus on the relief sought more than the elements of the cause of action.
14. In the supporting affidavit of Nakanat Kote (Mrs) the Acting Registrar of the plaintiff, the allegation is made, among others, that the “first and second defendants have forced the University to absorb the 39 students into internal mode (face to face learning) instead of external mode” and that “the first defendant has threatened to withdraw scholarships to students selected by UPNG and not the Department of Higher Education, Research, Science and Technology, despite meeting the GPA requirements ...”.
15. Having regard to all the above, it cannot be conceivably suggested that there is no reasonable cause of action and that the plaintiff’s proceedings are futile, and or a sham, destined to fail if the matter proceeds to trial.
16. In the premises;
    1. The application is without merit and it is refused.
    2. The applicants shall bear the costs of the application.

___________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiff
No Appearance for the Defendant