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Lenturut v Akipe [2021] PGNC 212; N8905 (25 June 2021)

N8905

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 67 OF 2020 (IECMS)

BETWEEN:
DORIS LENTURUT
Plaintiff

AND:
JOHN AKIPE AS SECRETARY FOR DEPARTMENT OF DEFENCE
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 22^nd June

PRACTICE & PROCEDURE – Judicial Review & appeals – Leave application – Order 16 Rule 3 (1) NCR – Standing – No delay – Exhaustion of Internal Processes – Arguable case – Balance discharged – Leave granted for JR – cost follow event.

Cases Cited:

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797

Vakinap v Kambanei [2004] PGNC 264; N3094.
Counsel:

L. Tangua, for Plaintiff
K. Kipongi, for Defendant

RULING

25^th June, 2021

1. MIVIRI, J: This is the ruling on the originating summons dated the 30^th October 2020 pleading for; - 1. Leave to be granted for an order for mandamus compelling the first defendant to implement the decision of the Public Services Commission contained in letter dated the 30^th November 2017 to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence and to have all her entitlements paid out if any.
   
2. Costs of the Proceedings and abridgement of time and such other orders as deemed appropriate in the discretion of the Court.
   
3. This is a related proceeding to OS (JR) 220 of 2018 reinstating the third defendant Carmel Tamileoni as Deputy Secretary Department of Defence; OS (JR) 181 of 2018 the third defendant Mary Chilli who held the position of Assistant Secretary, Human Resources Management, grade 16 Position No; DHRM 008, OS (JR) 220 of 2018. In proceeding OS (JR) 178 of 2018 the third defendant is Anna Lapu who held the position as Principal Staff Development & Training Officer grade 14, Position No: 011 with the department of Defence. And OS (JR) 177 of 2018 the third defendant is Mamel Wingu who held the position as Manager Civil Staff and Salaries, grade 14, Position No: DHRM 008 with the Human Resources Division of the Department of Defence.
   
4. Plaintiff relies further on the statement in support of the 30^th October 2020, the affidavit verifying facts of the 28^th October 2020 filed the 30^th October 2020, and her own affidavit in support sworn of the 28^th October 2020 filed also of the 30^th October 2020.
   
5. What is clear from this evidence is that she was employed with that Department as its Assistant Secretary Corporate Services at grade 18 prior to her termination at the hands of Mr. Vali Asi then Secretary for the Department of Defence then. She appealed from that decision to the Public Services Commission on or around the 02^nd March 2017. It upheld her appeal ordering her reinstatement to her position forthwith. Which was communicated to the defendant’s predecessor on the 13^th December 2017. He refused to implement that decision after the decision was outstanding to be so implemented after expiry of 30 days. He instituted proceedings OS (JR) 288 of 2018 Trevor Meauri v Dr Philip Kereme, Public Services Commission & Doris Lenturut seeking review and to quash the PSC decision dated 30^th November 2017 amongst other reliefs. That proceeding was dismissed following interparty hearings in favour of the plaintiff. Plaintiff pursued the defendants to reinstate her in accordance with the decision of the PSC to no avail hence this proceeding for leave to compel by mandamus.
   
6. This case is likened to the case of Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797(28 October 2005) where there is deliberate defiance in the face of what is glaring in law against the defendants. That there is no iota of ground that will advance their defiance. In the same way is the case of the defendants here. There is no appearance despite service. But it is clear given that even if there was appearance the law is clear deriving from the facts pleaded here. It fulfills the requirements set out by Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014) fulfilling.
   
7. She has demonstrated that she has standing and satisfies that balance. She has not delayed the matter. There are very good reasons as to why and it is all set out by the evidence set out above of the reluctance to admit a fact that is clear on the part of the defendants. It is no fault of hers that the action is here at this time. Here reasons are genuine and clear by her evidence relied. She has satisfactorily established this ground on the required balance to advance her cause here.
   
8. The plaintiff has tried in vain to do and see eye to eye with the defendants on the administrative level to no avail. That also qualifies and satisfies that internal process and procedure to avoid court has been attended to and settled. This ground is also in her favour and she discharges on the required balance.
   
9. Further there is clearly more than an arguable case demonstrated. For all it is worth she has discharged this ground beyond the balance of preponderance and she is entitled on that basis to be granted leave to review as she has pleaded. The facts relied on are self-explained and leave no option other to grant as she has pleaded because she has discharged to the required level.
   
10. Her originating summons is granted as pleaded. She is granted leave to apply for Judicial review for mandamus to lie against the defendants compelling the first defendant to implement the decision of the Public Services Commission contained in letter dated the 30^th November 2017 to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence and to have all her entitlements paid out if any. It would not be out of the context seen by this court in Vakinap v Kambanei [2004] PGNC 264; N3094 (29 November 2004) which drew similar. I adopt the reasoning there and follow likewise here given the facts similar and the relevant law sustaining the application of the plaintiff in her favour.
    
11. In this regard the matter is adjourned to the next directions date of this court of Monday the 05^th July 2021 at 9.30 for directions to ascertain the position in respect of the parties to finalize the substantive matter pleaded for.
    
12. The formal orders of the court are:
    
    • (1) Leave is granted for judicial review for mandamus.
    • (2) The matter will be called Monday 05^th July 2021 at 9.30am at directions.
    • (3) Costs in those proceedings will follow the event.

Orders Accordingly.

__________________________________________________________________

Baniyamai Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant