Akike v Push [2005] PGDC 13; DC96 (15 December 2005)

DC96

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 37 OF 2005

IN THE MATTER OF WRIT OF SUMMONS

BETWEEN

ETHEL AKIKE
First Complainant

AND

SAMUEL AKIKE
Second Complainant

AND

MARK PUSH
First Defendant

AND

STANLEY AIWARA
Second Defendant

Wewak

J. Singomat
25 November 2005
14 & 15 December 2005

CIVIL LAW - Claims against individuals exercising powers as administrators – redress sought included general damages for alleged breach of right to education (among others).

COURT HELD - Proper venue to contest Administrative decisions would be before the National Court - defendants not liable and complaint dismissed.

No cases cited.

Complainants, appeared in person each and severally.

Defendants, appeared in person each and severally.

JUDGMENT

15th December, 2005

J. SINGOMAT. The 1st Complainant (ETHEL AKIKE) was withdrawn from Passam National High School on 28th July, 2005. The manner in which Ethel Akike withdrew from studies is the subject of dispute before the Court. On the night of 27th July, 2005 a withdrawn student, Donald Jimlake was seen with Ethel Akike together in her cubicle at the girl's dormitory in the school.

On the 28th July, 2005 (next day) Ethel Akike was instructed to withdraw from being a student at the school by the Principal of the school, Mark Push, the 1st defendant. The 2nd defendants, Stanley Aiwara assisted in the filling in of the withdrawal form. The student (Ethel Akike) left school on the 28th July, 2005.

Issue:

(1) Did the 1st defendant (Mark Push) and the 2nd defendant (Stanley Aiwara) force Ethel Akike (student) to withdraw from her studies without hearing her side of the story?

(2) Did the 1st defendant follow proper procedures when he instructed Ethel Akike to withdraw from the school?

Discussions: The defendants were (at the time) the Senior Administrators of the Passam National High School (Mark Push, the Principal and Stanley Aiwara, the Deputy Principal). Mr Push together with a female teacher Ms. Nimbekut saw the student (Ethel Akike) with a male student in her cubicle on the night of 27th July, 2005.

It is regarded as a very serious disciplinary offence where a student is found in dormitory of the opposite sex and it may amount to expulsion of the student if unsatisfactory reasoning is given by the offender/s. In this case, Ethel Akike had to give her statement why she had a male (withdrawn student, Donald Jimlake) in her cubicle. Despite her statement, she was expected to withdraw from the school was the 1st defendant's instruction to her.

The witnesses (students) had testified to this Court that Ethel Akike never showed signs of been unhappy of the presence of Donald Jimlake (male) been in her cubicle. She knew of the consequences of been caught with a male person in her cubicle (room).

She was given the opportunity to be heard when she gave her written statement. The 1st defendant also obtained statements from other students (females) about the same incident.

The student (Ethel Akike) was informed of Donald Jimlake's intention to meet with her that night by one; Sipere (a female student) and she (Ethel Akike) followed her out from the study room and met up with Donald Jimlake (male). Then Sipere went back to her study leaving both Ethel Akike and Donald Jimlake alone. After that, whatever happened, nobody knew until they both (Ethel Akike and Donald Jimlake) were seen and caught by the 1st defendant and Ms Nimbekut in Ethel Akike's cubicle.

There seems to be no evidence of any sinister motives on the part of the defendants Mark Push and Stanley Aiwara) when upon the instruction the student (Ethel Akike) withdrew.

The paramount consideration in this case would be that the school had to keep its integrity as an Institution of Learning through the safe-guarding of behaviours of its students and even teachers.

Such issues like disciplinary matters become of concerns in order for advancement of students in their studies (purpose for which students are accepted into such institutions).

Unfortunate to the student (Ethel Akike), she had been seen to accommodate the interests of a male when she should have run off from the room and raised alarm of such an unwanted stranger in her room (if she never permitted Donald Jimlake to be in her cubicle).

In the very circumstances of this case, Ethel Akike had done or committed a serious disciplinary offence (such that it is an expellable offence). As to question of proper procedure not been followed by the 1st defendant when he instructed Ethel to withdraw from study, such issues can only be taken to an appropriate tribunal (National Court under Section 155 (3) of the constitution).

It is the humble view of this Court that both defendants had to protect the interests of the school and students against that of Ethel Akike (an individual interest).

For the answer to the first issue, I would answer in the negative.

The answer to the second is that there was an administrative decision to be made and Mark Push made such a decision to instruct Ethel Akike to withdraw from studies rather than facing up with the Governing Council Disciplinary Committee for the serious expellable office.

With much respect to the view of the complainant's I would answer in the affirmative under the very circumstances of this particular case.

Then if the complainants contend otherwise, it would be appropriate to address that issue in the Court above (National Court) and seek declaratory orders (among other orders).

In the light of the circumstances of this case, I find the defendants (Mark Push and Stanley Aiwara) not liable and consequently dismiss the complaint.

Given under my hand at Wewak this day and year first-mentioned above.

JEREMIAH SINGOMAT

Principal Magistrate