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Dopsie v Vanuga [2021] PGNC 445; N9207 (20 September 2021)

N9207

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 77 OF 2021

BETWEEN:
PAUL DOPSIE
Plaintiff

AND:
PALA VANUGA ACTING EXECUTIVE MANAGER NATIONAL DEPARTMENT OF HEALTH
First Defendant

AND:
DR OSBORNE LIKO IN HIS CAPACITY AS SECRETARY FOR THE NATIONAL DEPARTMENT OF HEALTH
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 15^th & 20^th September

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Mandamus – PSC Decision Section 18 (6) (b) Binding Effect PSM Act 2014 Amended – Affidavit in Support Plaintiff Applicant – Merit in Application – Materials Sufficient –Mandamus Granted – cost follow event.

Cases Cited:

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Palaso v Kereme [2016] PGNC 381; N6638
Hasifangu v Manludu [2019] PGNC 297; N7953

Counsel:
J. Napu, for Plaintiff
H. Wangi, for State

RULING

20^th September, 2021

1. MIVIRI, J: This is the Ruling on the plaintiff’s application for mandamus pursuant to Order 16 Rule 1 of the National Court Rules; “the Rules” to compel the defendants to implement the decision of the Public Services Commission dated the 03^rd November 2020.
   
2. Leave was granted on the 10^th August 2021; this is the substantive notice of motion for mandamus to implement that decision by the Public Services Commission made in favour of the plaintiff. Which decision is in the following terms:
   
   • (a) The Commission annuls the decision of the then Secretary for National Department of Health dated 29^th November 2019 which effectively suspended the Applicant, Mr. Paul Dopsie from the office.
     
   • (b) The applicant be reinstated to his substantive position held prior to his suspension from Office; and
     
   • (c) The Salaries and other contractual benefits lost (if any) as a direct result of the suspension be paid with backdated effect to the date of suspension.
     
3. He relies on his own affidavit which relevantly set out that, he was employed by the National Department of Health as Senior Contract Officer on the position of Executive Manager Corporate Services Grade 18 on three (3) years Performance Based Contract (annexure “A”), which was to have expired on the 21^st December 2021. On the 29^th November 2019 He was suspended (annexure “B”) from the office with pay under schedule 3 of the Contract, by then Secretary Mr. Pascoe Kase, pending an investigations into serious allegations levelled at him made during the Public Accounts Committee meeting held on the 25^th November 2015 by one Mr. Harupe Peke, who is the Managing Director of Global Customs & Forwarding Limited contracted to provide logistic services for Medical Supplies with the National Department of Health. The plaintiff was alleged to have solicited and extorted substantial amounts of money in illegal fees in exchange for approving payments made for the Company Services invoices? That is annexure “C” of the Newspaper cuttings relating. And which complaint was withdrawn (annexure“D”) by the Complainant against the plaintiff.
   
4. Plaintiff was late in lodging before the Public Services Commission but was granted on the material that he advanced. And the review sustained that the initial decision by the Health Department of the 29^th November 2019 was annulled. He was reinstated to his position held prior to the suspension from office. His salaries and contractual benefits lost if any as a direct result of the suspension were to be paid back dated effective to the date of his suspension. Annexure “E” is that decision by the PSC. The PSC upheld also on the basis that the complaint against the plaintiff was withdrawn by the complainant.
   
5. Submission was made by the State on the basis of this annexure that it is clear that investigations are intended both administratively and criminally. But each has since the 21^st December 2020 up to the date of this judgment no proof has been filed that that is the current status of the matter. It was broadcasted to the plaintiff in that subject of his reinstatement, but it is not clear when that will happen. It is now eight (8) months since that letter. No evidence has been led of any suspension or charges either administratively or criminally. And this is in the face of the pending facts set out above. Unless and until there are formally suspension and charges the PSC Decision is outstanding to be implemented in all frontiers as made. It has not been disputed formally by the law relating. Nor is there any application before the Court to vary its execution. Therefore, for all intent and purposes it must be executed as the position in law at present.
   
6. This is a matter where the complaint has been withdrawn by the principal complainant who is material to the maintenance of the administrative proceedings against the plaintiff. And similarly, with the Criminal Complaint. It must be clear that that is the evidence primarily supported by any documents in any on the allegations. As it is, it is withdrawn and does not stand against the plaintiff.
   
7. This observation initially made in the leave application are relevant here in the determination as to whether or not mandamus lies or not in favour of the plaintiff/applicant. Particularly in the light of Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). Which is similar in all material facts. There it was held that where there are cogent and convincing reasons advanced by the employer for failing to implement, the decision stands in law to be implemented. There is no material filed and presented by the State defendants to defeat as to why mandamus should not be granted in the implementation of that decision of the PSC. Thirty (30) days by section 18 (6) (b) has expired and that decision is binding upon the defendants to implement.
   
8. The allegations that have since 25^th November 2015 made by one Mr. Harupe Peke has not rolled into Criminal Charges nor has the decision of the Department of Health of the 29^th November 2019 was annulled being appealed so that it has been realigned from that original. This Court has dealt with Palaso v Kereme [2016] PGNC 381; N6638 (19 August 2016) and Hasifangu v Mauludu [2019] PGNC 297; N7953 (13 February 2019) in similar way as with Asiki (supra). That is the decision of the Public Services Commission has similar being implemented by mandamus. It is the decision of three Constitutional Office holders which has been tedious meticulously made to see out complaints by Public Servants as is the case here. The Constitution is Supreme Law sections 9, 10, 11 and the decision made by the PSC must be implemented. Because the decision emanates from discharge of duties by the PSC pursuant to sections 190 and 191. It is now incumbent upon the Department of Health to implement that decision now by mandamus here granted in favour of the plaintiff.
   
9. Here the argument that Police have expressed that applicant should not be restored to the office he held because there is most likely to be an investigation and he would be directly in the office where the allegation stems. Even this is shallow because the principal witness and the evidence relied has retracked the allegation. It will be the principal evidence in that investigation. Hence it makes no basis to continue to hold out the decision of the PSC without implementing.
   
10. Weighing the two it is clear the balance is in favour of the grant rather than the refusal. The authorities are clear and the facts here warrant the grant as opposed to the refusal. The discussions set out above leave no apparent or identifiable alternative in law or fact other than to grant the motion for mandamus. Accordingly, the motion is granted that mandamus lies against the defendants for the implementation of the decision of the PSC made in favour of the applicant/plaintiff. It must be implemented forthwith by grant of mandamus here with. And the particulars of the decision are set out above that must be implemented.
    
11. In short, the decision of the Department of Health is annulled by the Secretary of that department of the 29^th November 2019 remains so. Secondly the applicant is reinstated to his substantive position held prior to his suspension from office forthwith.
    
12. This entails that the Plaintiff is now entitled to claim damages because the actions and inaction in the implementation of the PSC decision has led to consequences that have befallen the plaintiff in the hands of the defendants for which he is entitled damages. They are immediate and arise out of the actions of the defendants against the Plaintiff. The cases of Asiki, Palaso and Hasifangu (all Supra) are clear in this regard. The path is not anew, and damages are pleaded here by the Plaintiff but the assessment will now proceed by the plaintiff filing and serving particulars of the damages. In return the defendants will file their defence on the assessment and serve on the plaintiff. They are granted liberty to file affidavits in the defence filed. The plaintiff is granted liberty to file any affidavits should it wish to. And at directions for trial date to be allocated thereafter. For now, mandamus is granted to enforce the decision of the PSC forthwith.
    
13. The formal orders of the court are:
    
    • (1) Judicial review lies and is granted to the plaintiff.
    • (2) Mandamus is granted pursuant to Order 16 Rule 1 of the National Court Rules for the implementation forthwith of the PSC decision of the 03^rd November 2020 in favour of the plaintiff.
    • (3) The decision of the Secretary for Health of the 29^th November 2019 which effectively suspended the Applicant, the applicant from the office is annulled.
    • (4) The applicant is reinstated to his substantive position held prior to his suspension from Office.
    • (5) The applicant’s salaries and other contractual benefits lost (if any) as a direct result of the suspension be paid with backdated effect to the date of suspension
    • (6) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants