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Fuawe v Warren [2019] PGNC 314; N7982 (23 August 2019)

N7982

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS. No. 644 0F 2017


BETWEEN:
MASI FUAWE
First Plaintiff


AND:
DR. SAMSON LAUP
Second Plaintiff


AND:
PROFESSOR WARREN
First Defendant


AND:
PNG UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT
Second Defendant


Kokopo: Susame, AJ
2019:11, 25th July & 23rd August


PRACTICE & PROCEDURE – Originating Summons Seeking Primary Declarative Orders & other Ancillary relief following an Administrative Decision - Whether Proceeding is an Abuse of Process - Order 4 Rules 2(3) and (3) of National Court Rules Considered


TERMINATIONOF EMPLOYMENT CONTRACT– Appeal lodged and Determined by Former Council – Decision for Reinstatement by the Council - Whether the Council’s Decision was binding on the Interim Council - Sections 6, 10 & 40 of the University of Vudal Act 1997 Considered


CONSTITUTIONAL RIGHTS- under sections 36 (1), 37(1) 37(17) & 41(1)-Whether sections have been breached – Circumstances Considered - Judgment entered for the Cross- Claimants/defendants


Cases Cited:


Boson Wilson, Rove Olk, Benjamin Borewa& Augustine Neetoh v Joseph Kekeya& Joseph Ogi & Divine Word University (2018) N7613
Specialist Centre PTY LTD v The State [1988-89] PNGLR 22
(Steamships Trading Co. Ltd. V Joel [1991] PNGLR 133
Malai v PNG Teaching Association [1991] PNGLR 115


Counsel:


Mr. P Yange, for the Plaintiffs
Mr. D Kamen, for the Defendants

DECISION

23rd August, 2019


  1. SUSAME AJ: Proceeding commenced by Originating Summons filed on 8 August 2017.
  2. Hearing was conducted on 11 July 2019. Arguments were heard on 25 July 2019. Judgment was reserved which I now deliver.
  3. As it appears from the pleadings first plaintiff initially sought the following declaratory and injunctive orders:
    1. An order that first defendant be permanently retrained from interfering with the plaintiff’s appeal to the second defendant’s Council and from threatening his family pursuant to section 155(4) of the Constitution;
    2. An order that the defendants be restrained from evicting the Plaintiff pending the determination of his appeal to the University of Natural Resources & Environment for his termination pursuant to section 155(4) of the Constitution;
    3. Costs be in the cause;
    4. Time for entry of the Court’s Order be abridged to the time of settlement by the Registrar, which shall take place forthwith; and
    5. Any other Orders this Honourable Court deems fit.
  4. Mr. Kamen has canvassed well chronology of events that followed. I will not set them out again. Let me state this. During different stages of the proceeding other ancillary applications were filed and heard including contempt proceedings. On dismissal of contempt proceedings on 15 May 2018 court amongst other orders granted leave for the plaintiffs to file and serve an amended statement of claim within 07 days.
  5. Second plaintiff had been included in the proceeding by order of the court on 5th September 2017. The amended statement of claim filed on 22 May 2018 sought the following relief:
    1. Declaration that the decision is valid and binding on the second defendant irrespective of the revocation of the then Council by the third defendant.
    2. Declaration pursuant to section 57(1) (3) of the Constitution that after the decision had become binding upon the second defendant where it cannot be invalidated by operation of s 40 of the University of Vudal Act 1997, the failure on the part of the first and second defendants to implement is in breach of sections 36 (1) (37(1) 37(17) 41(1) of the Constitution.
    3. An order directing the defendants to implement the decision and that plaintiffs to be reinstated to their substantive positions respectively.
    4. The plaintiffs are paid their lost salary entitlements in their substantive positions calculated from 31 August 2017 to the date of decision.
    5. General, special and exemplary damages for breach of Constitutional rights
    6. General damages for inconvenience, anguish and hardships.
    7. An order pending the final determination of the proceedings, the plaintiffs be paid their salaries and entitlements on their substantive positions.
    8. Further pending the final determination of the proceedings, the interim orders of the court made on 8 August 2017 be continued.
    9. Any other orders the Honourable Court considers proper.
    10. The second defendant to pay the plaintiffs’ costs incidental to this proceeding.

Issues


Issue


  1. Mr. Kamen took issue on the amended claim. His argument was that no specific order was made converting this proceeding into a statement of claim or pleadings. That was done without the leave of court or without seeking clarification from the court as to the orders made on 15 May 2018.
  2. Therefore, this proceeding was misconceived. It was an abuse of court process and should be dismissed.
  3. Mr. Yange argued no issue on competency of the proceedings was raised when defendants moved a motion on 23 November 2018 seeking dismissal of proceedings for abuse of process and for want of reasonable cause of action when the matter came before Anis J on 10 December 2018. His Honour had dismissed the motion on 7 February 2019.
  4. He argued no issue was raised in the defence and cross-claim filed on 8 June 2018 to the amended statement of claim. Events have overtaken and there should not be any issue on modes of proceedings at this stage.
  5. I posed a question whether damages can be sought for allegations of breach of Constitutional rights and for inconvenience, anguish and hardships in an originating summons proceeding or should such relief be sought in a writ of summons? Mr. Yange responded, it is has been done and is allowable. He handed up in court judgment of Cannings J in Boson Wilson, Rove Olk, Benjamin Borewa & Augustine Neetoh v Joseph Kekeya & Joseph Ogi & Divine Word University (2018) N7613
  6. Mr. Kamen argued otherwise. The proper mode would have been by judicial review proceedings or writ of summons. Plaintiffs have not clearly set out what they are claiming. Pleadings are ambiguous and fail to disclose a reasonable cause of action known in law.
  7. I am not persuaded by Mr. Kamen’s argument for these reasons.
  8. Firstly, plaintiffs are not seeking leave to apply for judicial review in this proceedings under Order 16 Rule 3(2) of the National Court Rules. Nor is this a judicial review proceeding under Order 16 Rule 5(1). Rather, plaintiffs are seeking declaratory orders which are the primary reliefs being sought in addition to consequential reliefs in the amended statement of claim.
  9. Whilst the plaintiffs are affected by an administrative decision (which is a public institution created by an Act of Parliament)they have decided against filing judicial review proceedings. Instead they chose to follow the mode they have taken. They have commenced substantive proceedings seeking declaratory relief or declaration of a right by originating summons. That is permissible under the National Court Rules in particular Order 4 Rules 2(3) and (3). Under this rule plaintiffs have an option to commence proceedings by an originating summons or a writ of summons to seek reliefs being sought in this proceeding. (Specialist Centre PTY LTD v The State [1988-89] PNGLR 22, Woods J)
  10. Similar arguments were heard in Boson Wilson, Rove Olk, Benjamin Borewa & Augustine Neetoh v Joseph Kekeya & Joseph Ogi & Divine Word University (supra) in which proceedings commenced by originating summons for protection and enforcement of human rights under s 57 of the Constitution. Plaintiffs sought declarations that their human rights had been breached and sought orders for their reinstatement as students and damages. Cannings J in dismissing the argument held inter alia:
    1. Proceedings were not an abuse of process as the plaintiffs were not applying for the type of orders that would making it necessary to commence proceedings under order 16 of the National Court Rules. They were applying for enforcement of their human rights, properly invoking the jurisdiction of the National Court under s 57 of the Constitution.
  11. Court declared defendants had breached plaintiffs’ human rights and ordered their reinstatement as students. Court further awarded damages of K1000.00 for breach of their rights.
  12. Secondly, pleadings are unambiguous. They sufficiently disclose a cause of action known in law. Plaintiffs’ claim is that they have been denied the right of employment following Council’s decision for their reinstatement which was binding on the defendants. They also claimed infringement of their Constitutional rights occasioned by defendants’ refusal to reinstate them. Plaintiffs have properly invoked the jurisdiction of this court under s 57 of the Constitution seeking relief for the rights that were alleged to have been breached. Proceeding is competent and cannot amount to an abuse of process of the court.

Issues


  1. The two issues will be answered together as they are depended on considerations of sections 6, 10 & 40 of the University of Vudal Act 1997.
  2. Let me set out the facts emanating from various affidavit evidence filed leading up to the councils’ decisions. First plaintiff was employed as the Registrar while second plaintiff was employed as the Pro-Vice Chancellor (Academic & Planning) of the University under their respective contract of employment for a term of 03 years.
  3. First plaintiff’s contract was executed on 23 September 2015 and was to end on 22 September 2018. However, it was prematurely terminated by the first defendant by a termination notice issued on 24 April 2017.[1]
  4. Second plaintiff’s contract ran from 26 May 2016 to 25 May 2019. It was prematurely terminated by a termination notice issued on 4 July 2017. [2]
  5. They were both terminated for what the University claimed as serious misconduct behaviour in breach of clause 18.1 (d) of their respective contracts. [3]
  6. Aggrieved by their termination first plaintiff lodged his appeal to the Council on 24 April 2017. That was 10 days after the decision. Second plaintiff lodged his appeal one month after on 3 August 2017. [4]
  7. Clause 18.5 of the respective contracts stipulated for appeals to be lodged within 07 working days against any decision of the University. At the outset both appeals were lodged outside of the prescribed 07 working days.
  8. University Council under the Chairmanship of the then Chancellor Margaret Elias convened and heard their respective appeals on 31 August 2017 and decision was made to reinstate the plaintiffs to their respective positions. Reasons for the decision was conveyed to first defendant in a letter dated 5 September 2017.[5]That decision was not immediately implemented. While plaintiffs were waiting for their reinstatement the entire membership of the Council was revoked and interim Council appointed by the then Minister for Higher Education Pila Ninigi in the exercise of his powers under s 152(3) of Higher Education (General Provisions) Act 2014.
  9. A letter dated 27 September 2017 was released by the Minister advising Margaret Elias of the decision which was emailed by the Secretary of the Department Fr. Jan Czuba on 2 October 2017 to Margaret and first defendant. The Minister’s decision was to take effect immediately as of 28 September 2017.[6]
  10. Professor Kenneth Sumbuk, was appointed as the Chancellor and Chairman of the interim Council. The interim Council in the meeting held on 11 October 2017 (annexure PK1 minutes of the meeting of Dr. Pongie Kichawen’s affidavit sworn 4 June 2019 document 50) resolved to reaffirm the decision of the Strategic Meeting held on 21 September 2017. It upheld the decision by the first defendant and the Management for termination of the plaintiffs. That decision effectively revoked the decision for plaintiffs’ reinstatement by the former Council.

Consideration of arguments on the issues.


  1. It was argued for the plaintiffs the decision of 31 August 2017 by the former Council Chaired by Margaret Elias for plaintiffs’ reinstatement was binding on the defendants irrespective of revocation of the then Council by the Minister by operation of section 40 of the University of Vudal Act.
  2. There is no power vested in the Minister by sections 152 & 153 of Higher Education (General Provisions) Act 2014 to revoke decisions made by the former Council. His power is limited only suspension of Council or revocation of Council members. The decision to revoke or suspend does not affect any decision made by the Council during its tenure.
  3. It was further argued the interim Council never met on 21 September 2017 and set aside the decision of the former Council. The decision of 21 September 2017 which defendants rely on in their defence and cross-claim was made by a third party from the Office of the Higher Education and unknown persons from the University who did not have the power and authority to make such a decision.
  4. Mr. Kamen of the defendants argued appeals by the plaintiffs were technically defective. Council should not have deliberated on and made the decision. Without advice from the University Management, Council went ahead and heard their appeal and made the decision to reinstate the plaintiffs. By not exercising their right of appeal within the prescribed period plaintiffs have forfeited their right of appeal.

Late Appeal


  1. I am not impressed with Mr. Kamen’s argument for two reasons. First, while it is accepted that appeals were lodged outside of the prescribed 07 working days prescribed in clause 18.5 of the respective contract's events have progressed on. Despite the late lodgment of the appeals, Council had deliberated on their appeal and made a decision for plaintiffs’ reinstatement. The reasons for the decision are contained in the Margaret Elias’s letter dated 5 September 2017. [7]That decision was binding on the defendants and never challenged in court by way of judicial review.
  2. Secondly, the meeting by the Council to deliberate on the late appeals and decision made cannot be invalidated by operation of s 40 (c) of the University of Vudal Act which reads:

40. VALIDITY OF PROCEEDINGS.


No Act or proceedings of any authority or committee or by any person acting as a member thereof or as an officer of the University shall be invalidated by reason of–

(a) a defect in the appointment of such a person; or

(b) a disqualification of such a person; or

(c) a defect in the convening of a meeting; or

(d) a vacancy in the number of members of an authority.

(Emphasis added)


Therefore, appeal proceeding conducted by the Council is saved by the operation of s 40 (c).


Decisions of the Councils


34. First, the decision for reinstatement of the plaintiffs by the Council Chaired by Ms. Margaret Elias was binding on the defendants. Minster has power to revoke Council members and appoint interim Council members under s 152 of Higher Education (General Provisions) Act 2014. However, the decision by the Minister to revoke the Council does not affect any right, privilege or nullify any decision by the Council. That is by operation of s 153 of the Act. Therefore, decision of the former Council was still valid and binding on the defendants.


35. However, there was delay in the implementation of the decision. An interim Council under the Chairmanship of Professor Kenneth Sumbuk was appointed. It convened on 11 October 2017 and decided against upholding the decision of the former Council. Instead it reaffirmed the decision by the first defendant for the plaintiffs’ termination.


36. Secondly, was that decision improper and legally flawed?
37. This question cannot be answered without consideration of certain provisions of the University of Vudal Act.


38. Section 42 of the Act bestows upon an interim Council all powers, authorities, function and duties of a permanent Council, except those with regard to election of a Chancellor of the University.


  1. POWERS OF THE UNIVERSITY.

The University shall have the power–

(a) to grant such degrees as are authorized by the Statutes and such diplomas, certificates or other academic awards as it determines; and

(b) to provide instruction and facilities for study, education and research to persons registered as preparing for degrees, diplomas, certificates or other awards of the University; and

(c) to provide facilities for extramural study and continuing education to persons, whether members of the University or not, in such fields and in such a manner as the University may from time to time determine; and

(d) to co-operate in pursuance of any of the objects of the University with any other bodies or persons to enter into agreements authorized by Statute with institutions for their affiliation with or incorporation into the University; and

(e) subject to the Salaries and Conditions Monitoring Committee Act 1988, to appoint academic, administrative and other staff on such terms and conditions of service as the University may determine; and

(f) to provide for promoting the health and general welfare of the students of the University, including the establishment and supervision of residences; and

(g) to regulate and enforce discipline among the employees and students of the University by such measures as the University may determine; and

(h) to cancel, annul or revoke any act done in the exercise of these powers; and

(i) to do all such other acts or things as may be done under the provisions of this Act or these powers or as may be conducive to the exercise of the attainment of any of the objects of the University.

(Underlining added for emphasis)


10. FUNCTIONS OF THE COUNCIL.


(1) Subject to Subsection (2), the functions of the Council are–

(a) to promote and ensure attainment of the objects of the University; and

(b) to determine University mission and monitor the performance of the University in terms of its mission; and

(c) to formulate university policies and planning guidelines for University management; and

(d) to appoint University officers and academic, administrative and other staff of the University; and

(e) to have the charge of the management and administration of the revenue, property and personnel of the University, and the conduct of all matters relating to the University not otherwise provided for in or under subordinate legislation made in accordance with this Act; and

(f) to approve the Annual Report, Annual Accounts, Audit Report thereon and the budget of the University for the next financial year; and

(g) to exercise such other powers and perform such other duties as may be conferred on it by this Act; and

(h) generally, to take such action as appears to it best calculated to promote the interest of the University.

(2) In determining any matter which directly affects the academic policy of the University, the Council shall consult with the Academic Board.

(Underlining added for emphasis)


39. The Council is the principal executive authority of the University. [s 8(a)]. Section 6vestsgeneral power upon the University to do those things provided in subsections (a) to (i) in the exercise of its powers. Section 10 is more specific. It vests powers upon the Council to function in the areas prescribed in the section. Section 10 reaffirms and compliments section 6.


40. The provisions amongst other things vest power to the Council:


41. There is no clause in the employment contract that allows for Council to review its own decision or decision of another Council. However, the Act makes provision for that in sections 6 & 10.The Council may annul, revoke or review its own decision or decision of previous Council. In that regard the decision of the former Council was not binding on the new Council except the defendants until it was revoked or annulled.


42. The interim Council formally convened on 11 October 2017 at the University Chancellery Board Room, Kerevat East New Britain Province. A Strategic meeting was held by Department of Higher Education Research Science &Technology on 21 September 2017. A decision may have been made in support of first defendant’s decision to terminate the plaintiffs. The interim Council resolved to follow the decision made in that Strategic Meeting and upheld the initial decision of the first defendant for termination of the plaintiffs’ employment contracts.


43. Furthermore, proceedings of the interim Council of 11 October 2017 cannot be considered as an appeal proceeding. I do not consider Council reopened the plaintiffs’ appeal and deliberated on it. Rather, Council reaffirmed the decision for termination of the plaintiffs when it exercised its exclusive or ultimate appointing authority. Effectively by that decision plaintiffs are longer serving officers or staff of the second defendant.


44. It follows from the discussions that the decision of the interim Council cannot be held to be improper, unlawful or legally flawed. However, plaintiffs may seek leave for judicial review to scrutinize the whole administrative process taken leading up to their termination. Not in this proceeding.


Defence- Cross Claim
Occupation of Institutional Residential Properties


45. Issue: Whether plaintiffs are unlawfully occupying the institutional residential properties?


46. Plaintiffs and their respective families continue to occupy the institutional residential properties. At the commencement of the proceeding on 8 August 2017 first plaintiff obtained an interim order restraining the first defendant from interfering with his appeal and threatening eviction pending determination of this substantive proceedings. The order was made returnable on 11 August2017and continued to be in force. [8]


47. Dr. Pongie Kichawen the acting Vice Chancellor in his correspondence dated 16 January 2019 to the first defendant misinterpreted the terms of the interim restraining order.[9]Any actions taken by the University Administration directly or indirectly threatening to evict the plaintiffs would have been contemptuous of a valid existing court order.


48. Second plaintiff was later on included as a party to this proceeding by order of the court on 5 September 2017. Court further ordered extension of interim order issued on 8 August 2017 which extended to include the second plaintiff and his family while pending determination of this substantive proceedings.


49. It follows that plaintiffs and their respective families were and are in occupation of the institutional residences by the authority of a valid court order. I do not consider their continued stay in those houses is unlawful or illegal. Except that the interim order did not make mention of payment of rentals and other charges that plaintiffs may be required to pay as stipulated in clause 13 of the employment contract. Cross-claimants/defendants may claim damages if they have suffered any loss.


Termination Entitlements


50. Consistent with my finding above plaintiffs’ employment contracts have been terminated by the interim Council as the ultimate appointing authority. University as the employer reserves the right to hire and fire subject to requirements of notice or payment in lieu of notice as prescribed in the employment contract or the Employment Act Ch. 373. (Steamships Trading Co. Ltd. v Joel [1991] PNGLR 133, Malai v PNG Teaching Association [1991] PNGLR 115).University has exercised that right through the Council.


51. Plaintiffs have each been paid three months termination entitlements in lieu of notice of termination. That is attested by Rose Teko, the acting Assistant Registrar, (Human Resource) in her affidavit sworn on 23 November 2018 with attaching documents. For the first plaintiff a cheque of K44 528.79 was drawn and paid to him on 17 July 2017.[10]. For the second plaintiff a net sum of K70 996.99 was paid into his personal bank account on 2 February 2018. [11]


Breach of Constitutional Rights


52. Under this head plaintiffs claimed failure by the defendants to implement the Council’s decision for reinstatement gave rise to breaches of rights guaranteed in sections 36(1), 37 (1), 37(17) and 41(1) of the Constitution.


53. There was a delay by the defendants to implement the former Council’s decision of 31 August 2017. The decision was binding on the defendants until it was annulled by the interim Council on 11 October 2017 and affirmed the decision for termination of the plaintiffs. Plaintiffs were never displaced. They had the benefit of secure shelter within the University under a valid court order despite receiving threats of eviction. All their termination entitlements have been paid.


54. In my view circumstances of the case do not give rise to breach of the rights prescribed in sections 36(1), 37(1), 37 (17) and 41 (1) of the Constitution that requires enforcement.


55. The end result of all the discussions is that plaintiffs have failed to prove their case. In respect of the cross-claim judgment shall be entered for the cross-claimants/defendants.


56. This is the formal order of the court:


  1. Case against the defendants is dismissed.
  2. Court declares that cross-defendants/plaintiff are no longer serving members of the second cross-claimant/second defendant.
  3. That cross-defendants/plaintiffs shall deliver vacant possession of institutional house No. 20 and No. 58 respectively within 21 days.
  4. That pursuant to Order 13 Rule 3 (2) leave is granted for issue of Writ of Possession to enforce order No.3.
  5. That members of the Police Force are to use reasonable force to evict the cross-defendants/plaintiffs for failure to comply with order No.3.
  6. That damages to be later assessed for the cross-claimants.
  7. Cost is awarded to cross-claimants/defendants on a party/party basis to be taxed if not agreed.
  8. Time for entry of orders is abridged to the time of settlement by the Assistant Registrar which shall take place forthwith.

_______________________________________________________________
Island Legal Service: Lawyer for the Plaintiff
Kamen Lawyers: Lawyer for the Defendants


[1] (Document 18, Prof John Warren’s affidavit sworn 1 November 2017, Annexure E)
[2] (Document 18, Prof John Warren’s affidavit sworn 1 November 2017 Annexure F)
[3](Document 18, Prof John Warren’s affidavit sworn 1 November 2017 Annexures E & F )
[4] (Document 18, Prof John Warren’s affidavit sworn November 2017 Annexures G & H
[5] ( Document 18, Prof John Warren’s affidavit sworn 1 November 2017, Annexure I)
[6] (Document 18, Prof John Warren’s affidavit sworn 1 November 2017, Annexure J )
[7](Document 18, Professor John Warren’s affidavit sworn on 1 November 2017, Annexure I )
[8] (Document 5)
[9](Document 46, Paul Pori Yange’s affidavit sworn 17 May 2019, Annexure A & Document 43, Dr. Pongie’s affidavit sworn 1 April 2019.
[10](Document 36 attachments marked RT1 – RT7)
[11] (Document 36 attachments marked RT8 –RT13).

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