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Waninga v Sinebare [2021] PGNC 71; N8817 (11 May 2021)

N8817

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (IECMS) NO. 65 OF 2021

BETWEEN:
Dr TENG WANINGA, PhD, Med Hons, Bed in his capacity as Acting Vice Chancellor of the University of Goroka
Plaintiff

AND:
Dr MUSAWE SINEBARE, PhD, Med, Bed in his Capacity as Former Vice Chancellor of the University of Goroka
First Defendant

AND:
Professor JOSEPH SUKWIANOMB In his Capacity as the Former Chancellor of the University of Goroka.
Second Defendant

Waigani: Miviri J
2021: 04^th & 11^th May

PRACTICE & PROCEDURE – Originating Summons – Declaration – Sections 152 & 153 Higher Education (General Provisions) (Amendment) Act 2020 – Effect of – Acting Appointment Plaintiff – Interim preservation of Status Quo – grounds for – arguable basis of – damages – Balance of convenience – interests of Justice – Materials relied insufficient – balance not discharged – Motion refused – Cost follow event.

Cases Cited:

Kuluah v University of PNG (UPNG) [1993] PNGLR 494

Lara v Samy [2020] PGNC 306; N8513

Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522

McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646
Counsel:

D. Kipa, for Plaintiff
T. Waisi, for first Defendant
H. Wally, for second Defendant

RULING

11^th May 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion of the 27^th April 2021 pursuant to Order 12 Rule 1 of the National Court Rules and section 155 (4) of the Constitution and the inherent powers of the Court for an interim Order to be granted restraining the first and second defendants and their agents, servants, associates, relatives, including members of the Former Interim Council whose membership was revoked by the Minister for Higher Education, Research, Science, Technology and Sports in the National Gazette No. G231 dated 19^th April 2021, from causing any interference, disturbance, hinderance, threats towards the Plaintiff from performing fully and freely his functions as the Acting Vice Chancellor of the University of Goroka until further orders of this Court.
   
2. Order 1 Rule 7 and Order 4 Rule 38 (2) (a) (c) (d) and 42 of the National Court Rules is also invoked for leave to be given to dispense with the requirements for service.
   
3. Costs of and incidental to this proceeding is also being sought.
   
4. At the outset, this matter is related to OS (JR) 53 of 2021 Professor Joseph Sukwianomb as duly appointed chancellor of the University of Goroka and Ors v Honourable Wesley Raminai as Minister for Higher Education Research Science & Technology & Ors. It was heard after that matter as the parties conceded that both were related matters arising from the same facts and circumstances. The other matter is for leave for judicial review against the decision of the Minister. Here an injunction is sought to maintain that the plaintiff be not interfered with threatened by the Staff and Students of the University in his duties as the Vice Chancellor.
   
5. Naturally, it flows that the affidavit material filed must show this out that indeed he is being interfered with, threatened, hindered, disturbed from performing his functions as the Acting Vice Chancellor. His affidavit in this regard filed of the 27^th April 2021 deposes that he was appointed Acting Vice Chancellor of the University of Goroka after suspension of former Vice Chancellor Dr. Musawe Sinebare. And he evidences his appointment by annexure “A” National Gazette G234 of the 19^th April 2021 and “B” Statutory Instrument signed by Honourable Wesley Ora Raminai suspending the vice Chancellor of the University of Goroka, Dr. Musawe Sinebare, PhD. Med, BEd, and appointing Dr. Teng Waninga, PhD, Med Hons, BEd as the Acting Vice Chancellor with effect on and from the date of Publication of this Instrument in the National Gazette until the terms of Reference (TOR) of the Interim Council of the University of Goroka is complete and permanent appointment is made. The date of the instrument is 30^th March 2021 which is the date that appointment came into force. And it is signed by the Minister.
   
6. His appointment is on an acting basis as vice chancellor and is dependent on conditions that are set out in the Instrument which are set out above. Hence that is an administrative decision of the Minister which will be made subject to TOR complete and permanent appointment made later in the course. For the present he has asserted and must show by evidence on the balance of probabilities the threats he has been issued by whom, on what day and in what way. In similar way how he has been interfered with on what day, at what time by whom, and how did this disturb his work as Acting Vice Chancellor. Similarly, the disturbances that were caused him, on what day and time and by whom, name of Staff or Student, and how did this affect his performance of his duty as Acting Vice Chancellor. And whether this event was so bad that he was prevented or hindered from attending to his duties as the Acting Vice Chancellor. It is an account of what he saw and heard that had this effect of preventing or hindering, threatening him so that he was affected from performing fully and freely his functions as the Acting Vice Chancellor of the University of Goroka.
   
7. In all the material that he has filed, I find as a fact that there is no evidence to this effect in support of the motion that he pleads. The effect is that the motion does not have the evidence to discharge the plea that he makes. Without the evidence it is bare and does not advance his cause. He is the initiator and must show in evidence this important fact to sway exercise of discretion in his favour. In the words of the law, he must have suffered as a consequence of these actions and therefore seeks the hand of equity in presenting here. He has not shown other than a very general statement that the Staff and Students have been author to these. He who asserts must prove that is not the case in his favour here. This is not the same situation by the evidence as Kuluah v University of PNG (UPNG) [1993] PNGLR 494 (30^th April 1990). He was employed by the University of PNG on a three-year contract that expired. He was told to vacate the University house that he occupied. The court there held that it had not been discharged that it was necessary to protect the plaintiff from irreparable damage because what was pleaded was discretionary. A balance had to be drawn from what was reasonable and necessary that the possibility of harm to the applicant could not be settled by damages alone. It outweighed.
   
8. In my view the material relied, including the affidavit of Professor Joseph Sukwianomb of the 02^nd May 2021 do not advance the cause of the applicant. Put another way there are no special or exceptional cause demonstrated as in a stay situation demonstrated by McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 (30 June 2000). Or as in Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522 (29 October 2003) which is relevant here because there the restraint set earlier by the Court was set aside because change from the initial was shown of the relevant circumstances. It is clear in both that the evidence will tie the pleadings so that what comes out is complete. In the case here the applicant has not demonstrated to the balance beyond all preponderance to secure.
   
9. Simply put the Court will not be drawn into issuing any restraint because the affidavit relied on is self-serving. It does not give the basis as to why a restraint, because there is no independent verification that he makes of being threatened and intimidated by the Staff and students at the campus. And there is no independent verification that the Staff and Students are confused as to whose directions they should follow to run the daily affairs of the University of Goroka. There is no verification of the unnecessary interruptions. It begs whether this is a genuine cause that is being pleaded because there is no arguable cause demonstrated by the material relied: Lara v Samy [2020] PGNC 306; N8513 (23 September 2020).
   
10. Accordingly, the proceedings do not have the basis in the principles set out above the evidence is not there to tamper with an administrative decision that is in favour of the applicant as Acting Vice Chancellor until the TOR is returned so that a permanent Vice Chancellor is appointed. The motion is without merit and is dismissed in its entirety with Costs.
    
11. There is no reason to go down the path to examine what is repealed or what is amended of the Higher Education (General Provision) Act 2014. Because the evidence relied does not warrant that it be taken down that path. Court proceedings and action must not ride on the emotions of the Client but on well researched law applied to the facts. What is taken into court is distilled research and reasoning with outcome sanctioned by the law. That unfortunately is not the case for the applicant his motion fails on all fours forthwith. He has not drawn the balance of convenience in his plea nor the interest of Justice. He will bear the cost of so enduring against all before the court.
    
12. The formal orders of the Court are:
    
    • (i) Motion of the applicant is without merit.
    • (ii) Motion is denied in its entirety and dismissed.
    • (iii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Wang Dee Lawyers : Lawyers for the Plaintiff/Applicant

Waisi Lawyers : Lawyers for First Defendant

HBest Wally Lawyers : Lawyer for Second Defendant