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Mann v Niningi [2020] PGNC 184; N8404 (3 July 2020)

N8404

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 29 OF 2019

BETWEEN:
DR NICHOLAS MANN, ACTING CHANCELLOR UNIVERSITY OF PAPUA NEW GUINEA
Plaintiff

AND:
HONOURABLE PILA NININGI MINISTER FOR HIGHER EDUCATION RESEARCH SCIENCE & TECHNOLOGY
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2020: 12^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of Motion – Substantive Judicial Review – Acting Chancellor UPNG Suspension – Insufficient notice – right of hearing – locus Standi – no opportunity accorded – Revocation immediate effect – Whether contrary to law – whether certiorari appropriate– right of hearing not accorded – breach of natural Justice Section 59 Constitution – balance discharged for grant of Judicial review – Judicial review granted – certiorari lies – decision at first instance quashed – reinstatement not ordered – liberty to seek damages accorded – cost follow event.

Cases Cited:

Amet v Yama [2010] PGSC 46; SC1064
Yawip v Commissioner of Police [1995] PGNC 79; N1370
Lupari v Somare [2008] PGNC 121; N3476

Counsel:

S. Liria, for Plaintiff
E. Tolabi, for Defendant
RULING

03^rd July, 2020

1. MIVIRI, J: This is the Ruling on the plaintiff’s substantive notice of motion of the 22^nd January 2019 for Judicial review against the decision of the First defendant of 22^nd January 2019 in suspending his appointment as Acting Chancellor of the University of Papua New Guinea. And also, as council member of the University council. He seeks declaration that the first defendant’s suspension and revocation of his appointment is null and void. And for certiorari to bring that decision up to quash it. And costs following.
   
2. He argues that the first defendant had no authority to suspend and to revoke his appointment. He was appointed by the University Council they had the authority to suspend revoke his appointment not the first defendant. In so doing he breached, and his decision did not stand in law. When he did, he did not accord any opportunity for the plaintiff to defend himself because he was given 24 hours to vacate the office. Which in itself was unfair because he had served the University for many years.
   
3. These facts are set out in his affidavit sworn 22^nd January 2019. There he also annexes two letters “A” and “B” which are dated each the 22^nd January 2019 both written by Honourable Pila Niningi LLB, MP, Minister for Higher Education, Research, Science and Technology. The former revokes his appointment as Acting Chancellor and the latter his appointment as a council member of the University Council effective 22^nd January 2019. He deposes that at no time was he directed by the Minister to provide a report pursuant to section 152 (2) and (3) so that use of section 152 (1) following was given effect to in law authorizing what he did in law. As it is there was no basis for revocation of his appointment, and he was not provided any reasons.
   
4. The first defendant counters by his own affidavit dated the 30^th January 2019 that on the 14^th August 2018 he did write to the Acting Vice Chancellor then Mr. Vincent Malaibe after studying the minutes of the University Council numbered 178 (3/2012) dated 29^th November 2012 pertaining to the performance of the council from which he traced the history of the matter from Honourable Malakai Tabar then Minister for Higher Education Research Science and Technology who had appointed an interim council 04^th April 2016. And followed through his successor Honourable Francis Marus who had attempted to appoint new council members because of concerns related to governance of the University. And in that letter requested submission to his office no later than 4.00pm Wednesday 15^th August 2018, names of all interim University Council members; copy or copies of the Ministers letter of appointments and the procedure by which these were effected including day year expiry of same.
   
5. That was responded to by letter dated the 15^th August 2018 annexure “B” by Mr Vincent Malaibe as Acting Vice Chancellor stating reduction of the number of council members and opting to be given copies of the lists of potential council members submitted by former ministers Honourable Malakai Tabar 2016 and Honourable Francis Marus 2017. He acknowledged that the National Executive Council would make the appointments. And pleaded to the first defendant to assist the University repeal governing legislation so that University did not become bureaucracies inviting ineffectiveness and outliving usefulness in the years to come. He pledged to cooperate with the Minister.
   
6. The first defendant wrote yet another letter annexure “C” dated 24^th July 2018 addressed to the Vice Chancellor Vincent Malaibe the complaint made by Students to the Police alleging serious misconduct on the part of Academics asking return did any student make any complaint internally at the University before going to the Police on the matter? If so, what actions were taken in the matter by the University? If no, do students have a formal mechanism to make a confidential complaint to a staff at UPNG? And do Students know of these complaint mechanisms? What kind of policies and processes does the UPNG has in place to ensure that academic misconduct does not occur? What kind of policies, mechanisms and processes does the UPNG have in place to receive, consider, and determine allegations?
   
7. These assertions are compounded by material in his affidavit where he deposes at paragraph “18 (a) the members of the University council consist a majority of employees and members of the employment staff of the UPNG; (b) some of the Allegations of sexual harassment may have been made against persons who are currently and or formally members of UPNG Council; (c) due to the above there was a reluctance and failure to act in the best interest of UPNG as an Institution, particularly where it would result in effecting employment of certain senior staff; (d) the Council members were prepared to compromise their duties to UPNG with conduct that was wrongful, unethical and unlawful;”
   
8. There is no letter or material specifically to the plaintiff in his capacity as the Acting Chancellor on these matters raised in his (first defendants) affidavit effectively giving him an opportunity to participate in what is not normal within the University. So that he as the head would be invited to participate and lay to rest the matters raised. The letters are dated 14^th and 15^th August 2018 addressed to Mr Vincent Mailaibe Acting Vice Chancellor. They cannot be the basis for the revocation and termination of Acting Chancellor Dr Nicholas Mann on 22^nd January 2019. The nexus in the evidence is not established to give effect to the law applied.
   
9. The issue illuminated is whether or not the first defendant had power to revoke the appointment of the plaintiff as Vice Chancellor given these facts? And related is whether or not there was fairness and illegality in the actions against. It will also be considered too whether the plaintiff can be reinstated to where he was initially before the allegations arose, to Acting Chancellor of the University. This fact is undisputed including that he was a member of the UPNG Council. And had served the University and the council for over 17 years including 8 years as Chancellor. Which was revoked by letter dated the 22^nd January 2019 under hand of the First defendant annexure “A” to his affidavit of the same date. It is addressed to him in his capacity as Acting Chancellor with the official address of the University. The subject is section 152 (3) (b) of the Higher Education (General Provisions ) Act 2014, which draws his revocation. This is the basis in law for the actions of the Minister. He would be fortified by subsection (1) & (2) because there ought to be evidence of as they are read together. Section 152 (2), (3) (b) and (d) of the Higher Education (General Provisions) Act 2014 is to be read together with subsection (1) which sets out the following:-

“(a) being so negligently, inefficiently or badly conducted as not to be in the interests of higher education institutions in the country; or
(b) is in financial difficulty due to gross mismanagement; or

(c) is unable to perform its functions effectively due to dissention among members of the governing body; or

(d) is unable to resolve a student revolt or strike within a reasonable period and that the strike or revolt results in or is likely to result in –

(i) injury or death of a person; or

(ii) the destruction of public property, other than minor damage; or (iii) a serious threat to the public; or

(e) is unable to resolve a staff revolt or strike and that the revolt or strike results or is likely to result in –

(i) the institution not discharging its duties imposed on it by or under this Act or any other law relating to higher education or university matters; or

(ii) an unprecedented academic staff resignation; or

(iii) injury or death of a person; or

(iv) the destruction of public property, other than minor damage; or (v) a serious threat to the public; or

(f) is not properly carrying out the duties imposed on it by or under this Act or any other law relating to higher education or university matters,”

10. Here the evidence relied would be the affidavit of the first defendant dated the 30^th January 2019. But in the light of the particulars set out there appears to be no history eventually leading to the demise of the plaintiff in the matter. It is not as if he was the Vice Chancellor in 2018 carrying on to 22^nd January 2019. And despite being drawn out on the matters set out in his affidavit pertaining to sections 152 (1) (2) (3) of the Act set out above, there was no adherence or improvement to remedy that fact. It will effectively give adherence to procedure in law, and a basis there for the first defendant to act as he did against. Even if it were argued that he as part of the Management was involved is not shown out by reasons other than the annexures to the affidavit of the Plaintiff. Both are not satisfactory in law and would not be on parallel with Amet v Yama [2010] PGSC 46; SC1064 (9 July 2010) and Yawip v Commissioner of Police [1995] PGNC 79; N1370 (14 September 1995). Plain and simple the right to a hearing has not been accorded reliance on annexures “A” and “B” set out in the affidavit of the plaintiff by the first defendant as giving effect to this does not meet the required balance. The effect is that procedurally this right has not been accorded to the plaintiff and will be found in his favour given. First defendant has breached that right in the way that the plaintiff has pleaded. Because there is no written opportunity or notice given to the plaintiff as to what it is that is alleged against him, so that he is given an opportunity to explain and to rebut what it is. This is fundamental to a civil servant who has ploughed his way in the public service for 18 years in all, educated experienced and qualified to the highest level in academia to be unceremoniously discarded without proper opportunity in law in my view given all set out above a course for Judicial review open to him. This in my view would not be compatible with Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
    
11. Of particular concern is the numerous complaints about sexual harassment against Senior Staff at the University. Internally they were not attended to and so were brought to the office of the Minister. Including mismanagement of funds of the University over K70 million according to the affidavit of Jerry Wemin dated the 12^th March 2019. These are very serious matters effecting the administration of the University and should be drawn as here to the Plaintiff if he was at the pinnacle so much so that he was accorded opportunity to explain and give an account of what he was doing in the matter. To publish in the print media is not giving effect to the right to be heard. It is a matter official and personal to the plaintiff and ought with due diligence and compliance of law to be, accorded him not the public at large as was the case here by the affidavit material placed. Nor is it borne out by the evidence here in defence of the first defendant rather the contrary building up the plaintiff’s case against him. He has not discharged and dismissed the allegation that the plaintiff levels to the required level to set it aside. It is fundamental and underpinning this cause of action and falls the defence of the first defendant flat on all fours so that much so that the plaintiff is strengthened in his case of action over and above the required balance to sustain in his favour.
    
12. The Minister first defendant was dependent on the Departmental head to advice him should circumstances articulated under section 152 (1) came to light. This is coupled with the fact that he was not accorded hearing or opportunity to respond so that heed was paid natural justice. In effect he was not accorded and therefore the decision of the Minister was procedurally erroneous in law in his suspension and termination. It could not stand being biased it was wrong. It wasn’t a case where the University Council or Management failed to provide a report to the satisfaction of the Minister within the time designated in the direction, upon which the Minister consulted with the Secretary for Education to take appropriate actions necessary as it appeared calculated to promote the interest of the University. That was not the case here by the first defendant.
    
13. Plaintiff relied on his own affidavit dated the 22^nd January 2019 that apart from the two letters attached as annexure “A” and “B” there was no other directives under hand of the Minister directing him to advice the Minister and of which he had failed to comply warranting the Minister’s action against him. That there was no problem faced by the University that the defendant had against him. The Chancellor is appointed by the National Executive Council under section 26 of the University of Papua New Guinea Act “Act”, “The Chancellor (1) There shall be a Chancellor who shall be appointed by the National Executive Council. (2) The Chancellor shall be the ceremonial head of the University and, if present, shall preside at Convocations of the University for conferring degrees and at meetings of the Council. (3) The Chancellor shall perform such other functions and duties as maybe prescribed by this Act” He is a member of the University Council by virtue of section 9 of the Act. As such it could not be argued and maintained that the first defendant did not have the authority in law to suspend and to terminate him. But the fact of the matter in law is that the first defendant’s basis to invoke section 152 (3) (b) of the Act is not made out on the evidence he has produced. Vincent Malaibe is not the same person nor is he analogous to Dr. Nicholas Mann and therefore for all intent and purposes in law there was never notice right of hearing accorded giving effect to section 59 of the Constitution. It is the highest law of the land anything against will to that effect remain ineffective. And that befalls the defence of the first defendant and the defendants.
    
14. In accordance with the case of Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008) similar position will be endorsed here by the court given the facts are similar. Life has moved and it would be parting company with reality to step onto the toes of the incumbent now who had no say in what happened to the plaintiff there and then. Reinstatement will not be ordered as pleaded but similar terms as in Lupari (supra) will be granted.
    
15. Judicial review will be granted to the plaintiff.
    
16. Certiorari is granted quashing the decision of the First Defendant and the defendants made 22^nd January 2019 revoking the appointment of the plaintiff as Acting Vice Chancellor and member of the University council.
    
17. Plaintiff is granted liberty to amend these proceedings to plead damages as a relief and litigate the question of damages or alternatively to commence fresh proceedings by writ of summons or originating summons seeking damages.
    
18. Time for entry of the orders herein are abridged to the time of settlement by the Registrar which shall take place forthwith.
    
19. The defendants will pay the costs of the plaintiff if not agreed to be taxed.

Orders Accordingly.
_________________________________________________________________
Liria Lawyers & Forensic Services: Lawyer for the Plaintiff/Applicant
Kopunye Lawyers: Lawyer for the Defendants