Vingome v Diala [2014] PGNC 116; N5710 (22 August 2014)

N5710

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 174 OF 2013

BETWEEN

MATHEW VINGOME
Plaintiff

AND

JOHN DIALA
First Defendant

AND

SAM KAIPU
Second Defendant

AND

JOHN LULUAKI
Third Defendant

AND

UNIVERSITY OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2014: 18th July & 22nd August

JUDICIAL REVIEW – Review of decision to refuse application for admission to graduate – Admission for conferring of Bachelor of Laws– Grounds of review –Unreasonableness – Strict guidelines – Application dismissed.

PRACTICE & PROCEDURE – Application for judicial review – Competency of – Failure to file notice of motion to set matter down for trial following grant of leave – Proceeding incompetent – National Court Rules – Order 16, rule 5 (1).

Cases cited:

Timbani Longai v. Steven Maken & The State (2008) N4021
Tzen Pacific Limited v. Kanawi Pouru & The State: OS (JR) No 715 of 2010 (Unnumbered & Unreported Judgment of 25th April 2013)
Philip Isu & Ors v. John Ofoi & The State (2014) N5518
Rose Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
John Mua Nilkare v. Ombudsman Commission (1996) SC498

Counsel

Plaintiff in person
Mr D Kamen, for Defendants

JUDGMENT
22nd August, 2014

1. MAKAIL, J: The plaintiff seeks a review of the decision by the defendants to refuse his application to graduate with a Bachelor of Laws (LLB) from the University of Papua New Guinea in April of 2011. He alleges that he is a law student and has completed all requirements for the attainment of a LLB degree but was not allowed to graduate. He alleges that the defendants acted unreasonably when they misled him to enrol for the LLB program after he had completed a two year course of Diploma in Law (Prosecutions) (DLP) program in 2009. He alleges that the manner in which the defendants had treated him was grossly unfair and unreasonable and as a result the decision was grossly unfair and unreasonable such that it ought to be quashed and the defendants be ordered to accept his application and allow him to graduate with a LLB degree.

Competency of Proceeding

2. The defendants submit that the Court should not proceed to determine the merits of the application because it is incompetent and should be dismissed on the following grounds:

• Firstly, the State has not been named as a party in the proceeding. In any application for judicial review, the State would normally be named as a party. The plaintiff in some of the court documents has named the State has a fifth defendant (for instance see the submission for leave to apply for judicial review and the order granting leave) however, the plaintiff never applied to join the State as a fifth defendant.
  
• Secondly, in the originating summons and other court documents the plaintiff filed on 6th April 2013, the first, second and third defendants have been improperly named. The plaintiff has not named the first, second and third defendants in their official capacity. They have been named in their personal capacity and this is improper.
  
• Thirdly, the plaintiff has not filed the required notice of motion for the substantive matter after leave was granted under Order 16, rule 5 of the National Court Rules. Order 16, rule 5 (1) provides that when leave has been granted to make an application for judicial review, the application shall be made by notice of motion to the Court. Order 16, rule 5 (1) is in mandatory terms. The plaintiff has not complied with this requirement.
  
• Fourthly, with regard to the review book, the pages have not been numbered. Order 16, rule 7 (6)(b) provides that all pages of the review book must be numbered. This is also in mandatory terms but the plaintiff has not complied with this requirement.
  
• Fifthly, under Tab 7 of the review book, there is a copy of the court file index and a letter to Mr Raymond Dikana. It is now known why these documents were put in there when they are not court documents. Also under Tab 9, there are two letters which the defendants' lawyers wrote to the plaintiff that have been inserted there. Even the statement of agreed and disputed facts and legal issues inserted together with the two letters has not been filed in Court. The draft that was signed by the parties was copied and inserted in the review book without filing. Therefore, the review book is defective.
  

3. Based on the above stated grounds, the defendants submitted that this Court has discretion to summarily determine the proceeding under Order 16, rule 13 (2) for being incompetent and this proceeding be summarily dismissed for failing to comply with mandatory requirements of the National Court Rules and for failing to file the statement of agreed and disputed facts and legal issues.

4. As to the first ground, given that there is no expressed provision in Order 16 that states that the State must be a party in a proceeding for application for judicial review and that the defence has accepted that it is not mandatory that the State be a party, I am not satisfied that the proceeding should be dismissed on this ground. In any case, the State through the Secretary for Justice and Attorney-General would have been served with the notice of the application to apply for judicial review and I refer parties to the affidavit of the plaintiff sworn on 03rd June 2013 and filed on 04th June 2013 in the review book at Tab "JK". This should have enabled the State to apply to join the proceeding but it did not. This ground is, therefore, dismissed.

5. In response to the second ground, there is no merit in this ground because the first and second defendants have filed affidavits (Exhibits "D1" and "D2") in opposition to the application and from my reading of these affidavits, they have given evidence in their capacity as Executive Officer and Deputy Executive Dean of the School of Law respectively. For this reason, I am not satisfied that the defendants have not in any way been prejudiced or unfairly being disadvantaged by the plaintiff's failure to plead their official titles or failure to sue them in their official capacity and that the fourth defendant is vicariously liable for their actions and/ or omissions. This ground is also dismissed.

6. The third ground raises a significant procedural and jurisdictional issue. Order 16, rule 5 (1) state that, "Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by notice of motion to the Court." In Timbani Longai v. Steven Maken & The State (2008) N4021, which was followed in Tzen Pacific Limited v. Kanawi Pouru & The State: OS (JR) No 715 of 2010 (Unnumbered & Unreported Judgment of 25th April 2013), the Court held that filing a notice of motion under Order 16, rule 5 is a prerequisite to an application for judicial review and cannot be dispensed with in the event of default. Where a notice of motion is not filed after grant of leave, the effect is that there is no proceeding on foot for which the plaintiff may invoke the judicial review power of the Court to review the exercise of power by an administrative authority.

7. I had the occasion to consider the application of Order 16, rule 5 (1) in Philip Isu & Ors v. John Ofoi & The State (2014) N5518 and accepted this to be the position in law but distinguished that case from the other two mentioned cases on the ground that the plaintiffs in that case had filed a notice of motion at the commencement of the proceeding. In the notice of motion, the plaintiffs not only claimed an order for leave to apply for judicial review of the decision of the defendants to grant a Special Agricultural Business Lease to a company but also claimed substantive relief in the nature of declarations to declare that decision illegal and certiorari to quash it. Given that the plaintiffs had sought substantive orders in the same notice of motion, I held that it was sufficient for the purpose of Order 16, rule 5 (1) and allowed the application for judicial review to proceed to trial.

8. In this case, I have perused the notice of motion filed at the commencement of the proceeding and I find that it does not plead and seek in addition to leave, substantive orders. I have also perused the originating summons and except for leave, the substantive orders have not been pleaded. The same can be said of the statement made in support pursuant to Order 16, rule 3(2)(a). In my view the omission is fatal to the entire proceeding. Firstly, the procedural requirement has not been complied with and secondly, on the authority of Timbani Longai which was followed in Tzen Pacific Limited, by its omission, the plaintiff has failed to invoke the judicial review jurisdiction of the Court to review the decision of the defendants. Simply put, there is no proceeding on foot. Even if the Court were to consider the originating summons and the statement made in support pursuant to Order 16, rule 3 (2)(a), the plaintiff has failed to seek substantive relief whereupon, if the review were upheld, there would be no basis for the Court to grant the relief. For these reasons, this ground is upheld and the proceeding is dismissed as being incompetent. That being the case, it is not necessary to consider the remaining grounds of objection.

Merits of Application for Judicial Review

9. Even if the Court were to consider the merits of the application, the judicial review power of the Court under section 155(3) and (4) of the Constitution and Order 16 of the National Court Rules is discretionary and is available to correct errors in the decision making process: see Rose Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122. The underlying principles of judicial review have been discussed in a number of cases, for example, John Mua Nilkare v. Ombudsman Commission (1996) SC498 which have held that the established grounds upon which administrative decision can be quashed, amongst others include error of law on the face of the record and where the administrative body exercises its power unreasonably or the decision is unfair and unreasonable.

10. The plaintiff says he was permitted to enrol to undertake courses for LLB degree after he completed a two year DLP program while the defendants say that he was not accepted to undertake a LLB progam. The plaintiff says that he has successfully completed the courses for the DLP program and was accepted to enrol to undertake courses for the LLB program. His claim is supported by three other law students at that time. They are Mr Anthony Donigi who currently practices law in the Office of the Public Solicitor, Mr Emmanuel Donigi, presently a private practitioner and Mr Felix Singo who is presently a Police Prosecutor in the Prosecution Directorate of the Royal Papua New Guinea Constabulary. They say that the plaintiff was a student when they were also studying law at the University and did the same courses together.

11. The defendants say that firstly, the plaintiff enrolled for the DLP program and after completing it, he should have graduated and either returned to his work if he had took study leave or found a job and worked for two years before enrolling for the LLB program. He did not. Secondly, he did not complete a compulsory course namely Communication and Life Skills and failed three others, namely Computer Literacy & Numeracy, Land Tenure Law and Civil Procedure & Remedies. These are courses for the DLP program and having failed them, he did not qualify to graduate either for DLP or LLB.

12. The evidence which is uncontested is that, the School of Law offers two programs for students. One is the LLB program and the other is DLP program. There may be others but no evidence has been led to that effect. These are two different programs and have different grading to determine student eligibility for admission to be conferred either a LLB or DLP, although courses offered by each program may over lap. Given that they are separate and distinct programs, students who enrol for DLP are required to pass all the courses for that program and must graduate before undertaking further studies, for example, undertaking a LLB program or a Bachelors of Arts in Economics program in the School of Business Administration.

13. Now, there is a reason for the separation and that is, one program is for a Diploma which is a two year program and the other is for a Degree which is a four year program. Students undertaking these programs are required to pass all the courses to qualify for admission for the conferring of a Diploma or Degree, whichever is the case. To achieve a high level of academic excellence and competence, each student is assessed according to the grades for each course per program to determine whether the student has acquired the necessary knowledge and skills. The objective is that the requisite knowledge and skills is imparted by the lecturer/tutor/mentor to the students to prepare them when they leave the University. These programs and grading are fixed by the By-Laws of the University and are implemented by the School of Law. I refer parties to annexure "C" for a copy of the By-Laws 1 to 15 & 20 to 21 governing the LLB program in the affidavit of the second defendant (Exhibit "D2") in the review book and also annexure "JD4" for a copy of the By-Laws 1 to 18 governing the DLP in the affidavit of the first defendant (Exhibit "D1") in the review book.

14. There is no dispute that the plaintiff did not graduate after he completed the DLP program in 2009. There is also no dispute he is a police officer and was on study leave and did not return to work after he completed the DLP program. If it were that he was permitted to enrol for the LLB program, it would be contrary to the purpose for which the School of Law has established these two programs. In any case, the undisputed fact is regardless of whether he passed all the compulsory courses for the DLP program, he did not graduate before enrolling for the LLB Program. Such a conduct is also contrary to By-Law 18 for DLP program which states that 'The completion of a Diploma does not give a Diplomate the automatic right to proceed to the Bachelor of Laws Degree......."

15. In other words, there are no short-cuts in the programs set by the University. All students including the plaintiff must comply with the established procedures in order to qualify for admission to graduate. Another interesting aspect of the plaintiff's case is that he claims that he completed all the law courses between 2010 and 2011. He relies on the registration form to prove his claim but there is no evidence of a transcript from the University to verify his claim. He says that the defendants did not enter the marks he scored in these courses that he did and as a result, they were not included in the transcript. He claims that there was foul play or tampering of his marks. The allegation he makes is a serious one and in my view must be verified.

16. The defendants deny the allegation. The second defendant says that he made it very clear to the plaintiff at the outset that he could not enrol for the LLB program because he did not graduate after the DLP program and did not work for two years. Despite this, the plaintiff maintained his position as he had already enrolled and continued taking lessons. On the evidence, I find that the defendants made it clear to the plaintiff that he was not eligible to enrol for the LLB program. Despite this, he continued taking the law courses to his own detriment. He cannot now blame the defendants for the predicament he is in now, nor can he use other law students' situation in the likes of Anthony and Emmanuel Donigi and DLP program student Felix Singo as a basis for his entitlement to graduate. Their situation is different.

17. As the judicial review power of the Court is discretionary, this Court must also have regard to the purpose for which these two programs have been established for which I have already but briefly outlined, suffice to say and reiterate that they are separate and distinct programs with different grading. Students who enrol for each program must strictly comply and adhere to the requirements of the program. For these reasons, I find that he was not eligible to enrol for the LLB program and should not have enrolled at all. I further find that the defendants did not act unreasonably when they did not accept the plaintiff's application to graduate. The application for judicial review must fail on this ground. Given this finding, I do not propose to consider the remaining grounds of review.

Order

18. In the end, further to the proceeding being incompetent for failure to file the requisite notice of motion under Order 16, rule 5 (1), I am not satisfied that the defendants acted unreasonably or that the decision not to allow the plaintiff to graduate with a LLB degree was unfair and unreasonable. The application for judicial review is dismissed and the plaintiff shall pay the defendants' costs of the proceeding, to be taxed if not agreed.

Judgment and orders accordingly.
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Kamen Lawyers: Lawyers for the Defendants