DC6085

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
CIVIL JURISDICTION
GRFCV NO. 35 OF 2021

Between:
WILLIAM MAYA ANDIRA  - Ousted Chairman of Habare Primary School 
Complainant

And:
STEVEN HANDAPE MULI – Elected Chairman of Habare Elementary School
First Defendant

And
ROSE ILUPA – Head Teacher of Habare Elementary School
Second Defendant

And
RUTH BEN – Treasurer of Habare Elementary School
Third Defendant
And:
DANIEL TUMBIARI – Elementary School Coordinator, Division of Education, Hela Provincial Administration
Fourth Defendant
Defendant
 
Tari: Magistrate. E. Komia
03 September and 07th September 2021

CIVIL COMPLAINT – complaint against removal as chairman of school board – board appointed by parents – allegations of misappropriation – principles of equity and justice – complainant coming to court with unclean hands – complaint dismissed.

PRACTICE AND PROCEDURE – frivolous and vexatious proceeding – outcome of proceeding untenable – litigant coming to court with unclean hands – proceeding dismissed.

Papua New Guinea cases cited
John v John [2021] PGDC 44; DC6002 (17 May 2021)
PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forest [1992] PGLawRp 573; [1992] PNGLR 85 (04 March 1992)

Legislations
Nil

Counsels:

Complainant:	in person
Defendant:	in person

INTRODUCTION

1.	This is a complaint filed by the complainant seeking to restrain the newly elected chairman of Habare, and the board members from performing their functions at Habare Elementary School. The complainant further prays to this Court to have him reinstated as the chairman of the Elementary School. Trial was run on 30th September 2021, and this now my ruling on that matter.
BRIEF FACTS 
2.	On 15th June 2021, the complainant was voted out as Chairman of the Board of Management for Habare Elementary School, and the defendant was voted in as the new Chairman of the schools BoM. 

3.	The meeting was conducted when all the parents were present in the school premises together with the head teacher and other teachers.

4.	The reason behind the complainant’s removal was based on an allegation of misappropriating K 17, 500.00 belonging to the elementary school. 

ISSUE

5.	Whether the defendants should be restrained from performing the functions and duties as Board and Teachers of Habare Elementary School and the complainant be reinstated as Chairman of Habare Elementary School.

DISCUSSION

6.	The complainant claims that he was never given an opportunity to defend himself and that, the decision of the Parents and School’s Head Teacher to vote him out as the chairman is improper and asks the election to be nullified and the complainant be reinstated as the chairman.

7.	The defendants who are represented by the first defendant, Mr. Handape Muli submitted that the decision by the parents and school teachers and head teacher was for based on allegations that the defendant had failed to account for monies totaling K 17, 500.00 that the complainant had withdrawn from the school account.

8.	The defendants further submit that the meeting was held at the school premises and there was nothing sinister about the election. They also submit that the complainant was advised of the meeting date, and he was required to attend the meeting on that date and give his acquittal on the K 17, 500.00 he had drawn out from the school account.

9.	The complainant relied heavily on the invoices that he says were the materials, equipment, and accessories he had bought for the school using that money. When I inquired about the actual receipts to correlate with the invoices, the complainant evaded the questions and gave other excuses like paying the carpenter and labors their allowance for building the classroom.

10.	From the evidence that is put before me by the defendants, there is nothing much to show for the K 17, 500.00 and that most of the infrastructure in the school were built by the Tari Pori Development Corporation, a business arm of the Tari Pori District Administration.

11.	Furthermore, the fourth defendant gave evidence that he had inspected the school and the materials, tools, equipments and accessories which were listed in the quotation were never seen on the school premises and he did inquire on those things but the complainant kept referring to the invoices.

12.	In essence, I find that the defendant did grossly misuse the money belonging to the school. It is now a trend in Hela Province that, chairman and board members of schools often lobby and fight to become chairman of schools in the province so they can put their hands into the school subsidies that are paid by the National Government. Such trend must be discouraged and shun by authorities and in this matter, the courts.

13.	I have also noted that the Director for Education in Hela Province Mr. Ronny Angu has come down hard on such malpractices and certain head teachers and chairman have already been referred to the police to deal with such fraudsters.

14.	With respect to this claim, the complainant has not given an explanation or acquittal of the monies he had drawn out of the schools account. Equity and justice dictates that equity does not, and can never be used to assist or rescue a party that is at fault. In this case, the complainant argues that he was never given an opportunity to explain before he was voted out.

15.	I have considered the evidence put forward by the complainant himself, and noted that he was aware that there was a meeting to be conducted within the school premises, and all the parents, teachers and board members were to be present, and the complainant was to furnish the financial report. He chose not to attend on that date, and he was eventually removed as a chairman.

16.	Where the complainant has misappropriated monies belonging to the school and has not done an acquittal, I am fortified in my opinion that the complainant cannot cry foul and try to use equity to relieve him of his own mischiefs. If this court is to do that, and allow equity to come to the complainant’s aid, it would be grossly abusing the fundamental utility of the maxim of equity that; “he who seeks equity must do equity.”

17.	In considering other matters in this proceeding, I am also of the view that the proceeding is a frivolous and vexatious claim, and should not be allowed. This is because, there is basically nothing to challenge. The school board does not have a constitution, and the complainant had been a chairman because the school was on his land. He claims that he owned the school and he should remain the chairman. 

18.	The school is a government funded elementary school and I am having difficulty trying to understand the complainant’s submission that he owns the school and he is not supposed to be removed, and as such, he is asking this court to restrain all the defendants from performing their functions as teacher’s and board members of the school. That to my mind is absurd.

19.	I therefore ask myself if the proceeding has a cause of action that is untenable in law. In the most recent case of John v John [2021] PGDC 44; DC6002 (17 May 2021), which concerned a case in which, the elder sister took the younger sister to court seeking compensation for her goodwill and gesture she had given her young sister as a result of the younger sister’s failure to give her a cow she demanded during the bride price ceremony of her younger sister. In the John (supra) case, I stated in my ruling that:

“35. In the case of PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forest [1992] PGLawRp 573; [1992] PNGLR 85(04 March 1992) Sheehan J stated that;

There is a long line of history of decided cases where one party or another has sought to strike out proceedings of an opponent to obviate the need for trial. As long ago as 1887 in Republic of Peru v Guano Company (1887) 36 Ch D 489, Chitty J said:

“if it was notwithstanding defects in the pleading, … the Court is of the view that a substantial case is presented, the court should I think decline to strike out the pleading: but when the pleading discloses a case which the court is satisfied will not succeed, then it should strike it out and put a summary end to the litigation.”” 

20.	I then further went on to say in the John (supra) case that; “whilst a plaintiff or a claimant must not be driven from the judgment seat, the courts must protect its robustness by filtering out unwanted and unsubstantiated claims which hardly have any basis or chances of success in law or equity. If the court is seen by the public to entertain claims merely because of logic rather than law, it would create a judicial system that works meekly to the logic rather than law, it would create a judicial system that works meekly to logic rather than the wheel of justice, based on principles and mechanics of law.”

21.	It is therefore my strongest view that the claim by the complainant has no basis in law, and cannot survive. I am therefore of the view that the complainants claim must be dismissed, with cost to be borne by parties themselves. I therefore order the following:

COURT ORDER
1.	The complainants case is dismissed for being frivolous and vexatious, and therefore must be dismissed in its entirety.

2.	The complainant, his agents and associates, friends and family members are hereby further restrained from interfering with the daily operation of the school, and shall keep 100m clear from the school premises 

3.	The defendants shall ensure that the school is functioning and operating again, and that the school is managed to the exclusion of the complainant.

4.	Cost be borne by parties.

5.	Time is abridged.

By the Court
Magistrate E. Komia