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Epoko v National Cultural Commission [2021] PGNC 230; N8904 (23 June 2021)

N8904

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 810 OF 2019

BETWEEN:
MICHAEL EPOKO
Plaintiff

AND:
NATIONAL CULTURAL COMMISSION
First Defendant

AND
STEVEN KILANDA ACTING EXECUTIVE DIRECTOR NATIONAL CULTURAL COMMISSION
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 03^rd & 23^rd June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Application for Leave – Notice of Motion Order 16 Rule 13 (13) (2) (a) NCR – Dismissal of Proceedings – No reasonable cause displayed – Want of Prosecution – Reinstatement of Applicant – No utility – Balance discharged – Application granted – cost follow the event.

Cases Cited:

Timothy v Marus [2014] PGSC 50; SC1403
Josiah v Raphael [2018] PGSC 8; SC1665

Takori v Yagari [2007] PGSC 48; SC905
Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906

Counsel:

T. Tape, for Plaintiff
J. Holingu, for Defendant
RULING

23^rd June, 2021

1. MIVIRI, J: This is the Ruling on the first and second defendants notice of motion dated the 08^th March 2021 pursuant to Order 16 Rule 13 (13) (2) (a) of the National Court Rules (NCR) seeking dismissal of the proceedings on the basis that it discloses no reasonable cause of action for judicial review.
   
2. Secondly and alternatively pursuant to Order 16 Rule 13 (13) (2) (a) and (b) NCR for dismissal for want of prosecution.
   
3. The law is in order by Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014) that an application as is made by the first and second defendants can be made for the dismissal of the proceedings as particularized above. It is a discretionary matter for the court and is depended very much on the evidence that is presented. The burden is on he who asserts that the proceedings ought to be dismissed and here can be by both defendants. On the other side of the balance is the fact that when a party seeks the hand of equity it must do law, or “aequitas sequitur legem”, which meaning has invariably been given adages such as "equity will not allow a remedy that is contrary to law” or “equity had come not to destroy the law, but to fulfil it” or “equity has no clash with law neither it overrides the provisions of law, nor it is the enemy of law. It adopts and follows the basic rules of law,” “Josiah v Raphael [2018] PGSC 8; SC1665 (30 April 2018).
   
4. Hence the question posed is, is it therefore equitable to maintain the proceedings here?
   
5. The plaintiff contends the contrary and says even if it were so, judicial discretion is exercised and given the facts and circumstances here dismissal is not warranted given nor, that it is lacking for want of prosecution. Dismissal on the basis of 16 Rule 13 (13) (2) (a) and (b) NCR, or under Order 4 Rule 36 (1) and Order 12 Rule 40 (1) (a) & (b) of the National Court Rules in effect would deny the litigant the seat of Judgement. The Court would therefore be very cautious in so exercising that discretion: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007).
   
6. It is therefore important to canvass the facts pleaded here to determine that balance. Plaintiff has relied on his own affidavit in support of the 11^th November 2019 sworn of the 31^st October 2019. Affidavit of Timil L. Tape filed of the 11^th November 2020. Affidavit of Sau Waso sworn of the 03^rd November 2019 and filed on the 29^th December 2019 and lastly the affidavit in support of Steven Kilanda sworn and filed on the 27^th October 2020.
   
7. He was employed by the defendants since the 11^th August 1998 as policy analyst then promoted to Senior Policy Planner in 2001. He has served the Commission for 15 years up to the time of his suspension with pay on the 15^th August 2013. When the suspension notice was given plaintiff realized that he was charged on the 05^th August 2013. Because the charge was not served on him until service of the suspension notice on the 15^th August 2013. It is annexure “A” to his affidavit. Upon receipt he appealed to the Public Services Commission on the 16^th August 2013. Again, on the 02^nd September 2013 he was served with the same charge and suspension notices. And which he forwarded to the PSC. And whilst the PSC was taking time, he was put off the payroll for absconding from duties whilst he was still on suspension.
   
8. This prompted a second service of a notice of suspension dated the 24^th March 2015 and second charge that was dated 24^th March 2015 which are annexure “B” to the affidavit here. He responded to the second charge by letter dated the 1^st April 2015 a copy of which is annexure “B2”. The suspension has not been attended to by the defendants. “I am still out of payroll faced with hardship and suffering with my family of four children and wife. I am only bread winner and it is difficult to pay school fees with my children and provide their daily needs. My wife has been forced to sell goods at the market and has been subjected to police brutality. And I am still waiting for the PSC decision and whilst waiting I have been constantly following up at that office. Which has finally delivered the decision on the 09^th March 2016 which is annexure “C”. PSC upheld the suspension and directed the first defendant to speed up on the determination of the charges and make a decision on the penalty without any further delay. That the decision will become law if not attended to within 30 days.
   
9. And on the 20^th June 2016, I wrote to one Casper Damien then acting executive director of the First Defendant to reinstate me based on the PSC decision after the lapse of 30 days which is annexure “D” to my affidavit. He did not take any action from which a second letter was written of the 10^th October 2016 to Mr Casper Damien yet again for reinstatement annexure “E”. But he was removed and replaced with John Uani so I wrote yet again to him on the subject on 18^th June 2018 annexure “F”. It did not bring any response so another letter was written 10^th August 2018 following up annexure “G”. Seeing no material response, I wrote annexure “H” letter dated the 14^th January 2019 to Ms Taes Sansan Acting Secretary Department of Personal Management to which they responded with a letter dated 06^th February 2019 annexure “I”. To which I responded with a letter dated the 17^th June 2019 to reinstate me based on noncompliance of the PSC decision by the First Defendant annexure “J”. On the 11^th July 2019 by letter PSC annexure “K” requested for the reinstatement of myself. And on 03^rd June 2019 Lawyers for the plaintiff requested the first defendant to reinstate the plaintiff and to back date his pay “L”. And annexure “M” issued a section 05 notice to the State.”
   
10. Plaintiff wrote annexure “N” letter to the PSC of the 05^th September 2019 which requested them to make a final and substantive decision for noncompliance of their previous decision of the 09^th March 2016 by the First Defendant. To which the PSC replied annexure “O” that they had made a decision which stood. “And having exhausted all my avenues I now come to the court to grant leave to review the decisions of the first defendant and to judicially review the decisions.”
    
11. In response the defendants rely on the affidavit of the 04^th March 2021 of Steven Kilanda current incumbent acting executive Director of the National Cultural Commission. Whose evidence is to the effect that the plaintiff was punished for his wrongdoing and he should be recalled to work. And that on the 11^th July 2019 the Secretary of the Department of Personal Management wrote to me and directed for reinstatement of Michael Epoko to his substantive position. That is annexure “SK2” of the affidavit that he swore and annexure “SK3” is the letter that he wrote to Michael Epoko recalling him to work by the 04^th November 2019. It was delivered on the same date by the NCC festival officer one Andrew Kina to whom the plaintiff told him to serve the letter to his lawyers as the matter was before the Court. And annexure “SK4”is internal memo by Andrew Kina of that fact. “Michael Epoko has not resumed work to date despite being recalled by me on 30^th October 2019. Michael Epoko declined or refused to resume work for whatever reasons that are known only to him.”
    
12. Equity has been done by the defendants in recalling the Plaintiff back to work, but the question is have they in so doing done equity and in so doing held the hand of the law? The letter of the 08^th March 2019 under hand of Mr Steven Kilanda Acting Executive Director of the National Cultural Commission annexure “SK1” is in the following terms; “Re: Follow up of Mr Michael Epoko’s letter dated 14^th of March 2019 seeking DPM’s directive for Possible Re-Instatement Back to his Substantive Position.”
    
13. “In respect to the above subject matter, the Management wishes to advice your good officer that the previous management had failed to act on a per PSC decision on the 09^th of March 2016.
    
14. We notice that NCC has never had an internal Disciplinary Committee and most disciplinary cases were prolonged. Since Mr. Michael Epoko had written to DPM for direct intervention seeking possible reinstatement, we follow up if a respond is made as he continue following up with us.
    
15. The management now thinks that Mr. Epoko had been punished and should have been recalled. Like I said since he has written to you, shall be waiting for you directive.
    
16. Your respond and advice would be greatly appreciated by the NCC Management. Find attach the copy of his letter dated 14^th February 2019. Thank you. And is signed Steven Kilanda Acting Executive Directive.” Annexure “SK2” is letter by the Department of Personal Management by its acting secretary Taies Sansan (Ms). Specifically, it points that, “It is noted that the implementation of the PSC decision has taken approximately 3years 4 months since the date of the ruling. A prolonged length of time that has obviously exceeded the time frame in dealing with disciplinary matters stipulated under the Public Service Management Act. Take note that Mr Epoko has sought Legal representation from Kandawalyn Lawyers who have given the State notice under section 5 of the Claims By & Against the State Act to institute Legal proceedings against it. I therefore advice that due to NCC’s failure in not concluding against Mr Epoko, he should be reinstated to his substantive disciplinary action can be recommended and concluded accordingly. The implications of having this matter unsettled administratively incur more liability should Mr Epoko’s legal proceedings be succeed.”
    
17. This is admission to inflicting punishment upon the plaintiff that would be simply remedied with his recall back to duties, as if nothing happened to him for the 3 years 4 months and even more up to the date of this Judgement. He has detailed suffering at the hands of the defendants including his four children and his wife. And his letters set out above evidence continuous defiance to his call to settle the matter by the defendants. It is law that abuse of process denotes that proceeding have commenced as they have but not according to law and the rules of court: Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008). Effectively on that level given the facts set out above, the hurt would be more from the defendants than from the plaintiff. It would be more abuse from the defendants and acceding to their application would be condoning their action upon the plaintiff. It would be turning a blind eye to all that he has set out above endured at the hands of the defendants. There is therefore more that the defendants offer apart from his recall to active duties in the position he occupied. He should be entitled to what he has missed out in that period and be assured that he has been discharged to the fullest for the suffering he has had to endure since.
    
18. It would not be Equity holding the hand of the law if he were allowed to simply take up his position in the NCC without any remedy to level the suffering that he has endured at the hands of the defendants. Hence the application to dismiss in the face of all this would be injustice more than justice. The balance is not tilted that dismissal be granted as applied.
    
19. It would be more to Justice and Equity holding the hand of law, if offer is made by the defendants in the light of the admission that they have been made for the punishment inflicted upon the plaintiff for him to be offered damages in lieu, or payment of all wages and salary due with entitlements since the 3 years or more that this matter is outstanding up to the date of this Judgement. It would be consistent with equity holding the hand of the law if the matter is resolved in this manner. Given that the defendants have taken the first step by recalling him back to his position and duties but it will be full upon all entitlements due and outstanding paid up to the date of this Judgment.
    
20. Liberty is granted to the parties to get this settled in view of the facts set out above. Settlement to be endorsed by the court if consented to so that matter does not continue to the substantive hearing in view of the admission set out above. In this regard the matter is adjourned to Monday 05^th July 2021 at the directions hearing for the parties to advise the court where they intend the course of the matter.
    
21. The formal orders of the Court are:
    
    • (i) Defendant’s Application for dismissal is refused.
    • (ii) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________Kandawalyn Lawyers: Lawyer for the Plaintiff

Holingu Lawyers: Lawyer for the First & Second Defendants