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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO.14 OF 2014
BETWEEN:
JOEL LUMA
Plaintiff
AND:
JOHN KALI, OBE as SECRETARY FOR THE DEPARTMENT OF PERSONNEL MANAGEMENT
First Defendant
AND:
THE NATIONAL EXECUTIVE COUNCIL
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Nablu, J
2016:17th February,
3rd June
JUDICIAL REVIEW– Decision of the NEC to suspend the Departmental Head – Decision to revoke the Departmental Head’s appointment –Constitution ss 193 (1C) & 193(1D) – Public Services (Management) Act ss. 31(C)& 31(D) –Secretary for Works and Implementation – Suspension and revocation of a departmental head’s statutory process is mandatory – Public Service Commission must be consulted – Grant of relief discretionary – Reinstatement refused – Declarations and Certiorari appropriate – judicial review granted.
PNG Cases cited:
Alan Stevens v. Kopi Lapara (2013) N5425
Dale Christopher Smith v. Minister for Lands (2009) SC 973
IssacLupari v. Sir Michael Somare (2008) N3476
Joseph Klapatv. The NEC(2014) N5536
Luma v. Kali (2014) SC1401
MisionAsiki v. ManasupeZurenuoc (2005) SC 797
Ombudsman Commission v. Peter Yama (2004) SC 747
Overseas Cases cited:
Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233
Marginson v. Blackburn Bourough Council [1939] 2 KB 426
Counsel:
Mann-Rai R, for the Plaintiff
Mapiso W, for the First Defendant
3rd June 2016
1. NABLU, J: The plaintiff was the former Secretary for the Department of Works and Implementation who seeks to review the decision of the National
Executive Council to suspend him and then revoke his appointment, effectively terminating his employment. There are two decisions
subject of judicial review; the first decision is the decision to suspend him which was made by the Head of State on 21st February 2013 and published in the National Gazette No. G117 of 2013. The second decision subject of review was made on 12th November 2013 and published in the National Gazette No. G539 of 2013.
2. The plaintiff seeks to quash the decision of the National Executive Council (NEC) suspending him on 21st February 2013 and revoking his appointment as departmental head on 12th November 2013. The plaintiff also seeks various declarations that the defendant’s actions were illegal, null and void. He seeks to be reinstated as the Secretary for the Department of Works and Implementation. Alternatively he seeks damages to be assessed.
3. The facts agreed to by the parties and as set out in the statement of agreed and disputed facts is complicated by a number of court cases filed over the years. The parties agree that the plaintiff’s first term of appointment lapsed on 24th August 2011. The plaintiff was reappointed to the position of Secretary for Department of Works and Implementation pursuant to Section 193 of the Constitution and Sections 31A and 31B of the Public Services (Management) Act. He then executed a standard contract of employment of departmental heads (contract) on 2nd February 2012.
4. According to the Contract of Employment, the tenure of his employment was for a four year period which expired on 24th August 2015. The remuneration was at Executive Level 5 of the Public Services Salary Structure.
5. On 6th December 2012, the Minister for Works and Implementation, Hon. Francis Awesa suspended him and cited a number of serious allegations of misconduct. The suspension was based on allegations of incompetency, nepotism, fraud and insubordination. However, that suspension was uplifted following the first defendant’s intervention.
6. Then on 27th February 2013, the National Executive Council (NEC) suspended the plaintiff and appointed Mr David Wereh as the Acting Secretary.Then on 12th November 2013 the Head of State revoked the plaintiff’s appointment.
7. The disputed facts are, that the plaintiff is the Secretary of Department of Works and Implementation who was a public servant for 38 years. He applied for leave for judicial review of the decision to suspend him in February 2013. Leave was refused by the National Court. Upon appeal to the Supreme Court, leave was granted on 14th November 2014. The plaintiff challenges his suspension and removal on the basis that the process of suspension was not followed. Therefore the subsequent decision to revoke his appointment was unlawful. The matter was referred back to the National Court for determination of the judicial review application. The main issue is the construction of Sections 193 (1C) and 193 (1D) of the Constitution, Sections 31C and 31D of the Public Services (Management) Act 1995 and section 26 of the Standard Terms and Conditions of Employment of Departmental Heads.
8. The parties agreed that the legal issues for hearing are;
9. The plaintiff relied on the following affidavits for the substantive judicial review application which were contained in the Review Book. The affidavit of Joel Luma sworn and filed on 24th January 2014.The affidavit of Rex Mann-Rai filed on 29th May 2015. And the further affidavit of Joel Luma filed on 29th May 2015.
10. In response, the defendants filed the affidavit of John Kali, sworn on 5th August 2015 and filed on 6th August 2015. The affidavits of Hon. Francis Awesa, MP and David Wereh which were filed on 14th August 2015 and filed on 12th August 2015 respectively.
11. The plaintiff responded to the defendants by filing affidavits in response to each of the defendant’s affidavit. He filed affidavits in response to David Wereh and the first defendant which were filed on 28th August 2015 and contained in the Review Book as Document No. 22 and 23. His response to the affidavit of Hon. Francis Awesa MP was filed on 30th October 2015 and was marked document No.24 in the Review Book.
12. According to the Originating Summons and the further amended Statement under Order 16 filed on 15th June 2015. The decision is set out in the Statement;
“ Judgements, order or decision under which relief is sought is the decision of the Second Defendant to suspend the Applicant as the Secretary for the Department of Works and Implementation dated the 21st February 2013 and eventually termination on the 12th November 2013;
(a) which purported to suspend the Applicant indefinitely as the Secretary for the Department of Works and Implementation; and
(b) which purported to appoint Mr. David Wereh as the Acting Secretary for the Department of Works and Implementation and subsequently as Secretary for the Department of Works and Implementation;
(c) terminating the plaintiff’s contract of employment dated 12th November 2013;
(d) taking further steps to advertise the plaintiff’s position dated 22nd January 2013;
(e) which purported to terminate the contract of employment between the Plaintiff and the Third Defendant dated the 24th August 2011 (“the contract of employment”) which was due to expire on 24th August 2015 resulting in damages suffered by the plaintiff.”
13. I have summarised the grounds of review as contained in the Further Statement under Order 16 (which was filed on 15th June 2015) as follows;
Error of law/ Breach of Procedure
14. The plaintiff argued that the defendant’s failed to comply with Sections 193 (1C) and 193(1D) of the Constitution, Sections 8 of the Regulatory Statutory Authorities (Appointment to certain offices) Act 2004, Section 31C and 31D of the Public Services (Management) Act 1995 and Section 26 of the Standard Terms and Conditions of Employment of Departmental Heads. The particulars of the breach are set out in the Statements as follows;
15. The defendants submitted that this ground of review should be dismissed because it lacked merit. The decisions regarding the plaintiff’s suspension were dealt with by the National Court and it is now res judicata. Mr Mapiso of counsel for the defendant submitted that the question of suspension was determined by Cannings J in proceedings OS No. 776 of 2012. A copy of the transcript is annexed as Annexure “W1” to the Affidavit of John Kali. The defendant’s submitted further that the decision which the plaintiff should seek to review is the defendant’s decision to revoke his appointment and not the decision to suspend him.
16. Before I consider this ground of review, I will deal with the objection raised by the defendant’s. The objection raises the issue of res judicata. Mr Mapiso of counsel submitted that the issue of suspension is res judicata since Cannings J had dealt with and determined this issue. Therefore the plaintiff is barred from raising the same issue.
17. Moreover, the defendant’s argued that the suspension of the plaintiff was found to be lawful by the National Court and therefore the plaintiff is barred from raising the issue of suspension in these proceedings. The plaintiff on the other hand, argued that the issue of suspension had not been determined.
18. The case of Marginson v. Blackburn Bourough Council [1939] 2 KB 426 is a notable authority for the doctrine of res judicata and issue estoppel. His Honour, Poole J succinctly summarised the principles in that case in Alan Stevens v. Kopi Lapara (2013) N5425 which I agree with and adopt;
“ 1. The decision must be judicial.
2. The decision must, in fact be pronounced.
3. The tribunal must have had jurisdiction over the parties and the subject matter<
5. The decision determined the same question as that raised in later & &#i60;ltioga;
and
6. The parties to the later litigation were parties to the earlier &##160;;ɘ< &l60;&litig.Ri>
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19. U/b> Upon apon a curs cursory examination of the facts and when applying those principles to the present case, I am of the view the ine ores judicataicata and issue estoppel is not applicable.able.
20. The National Court constituted by Cannings J made the decision. The Court heard and determined the issue of the suspension by the Minister on 7thDecember 2012 and the issue of whether the proceedings should be dismissed. In the present case, the question before this Court is whether the suspension of the plaintiff on 21stFebruary 2013 and the subsequent revocation of his appointment as the departmental head on 12th November 2013 is lawful. These are two different legal issues. Despite the fact that the parties are the same, I am not persuaded by the defendant’s counsel’s objection, accordingly I dismiss the objection.
21. The issue for determination by this Court is whether the defendant’s breached the mandatory statutory procedure. In determining that issue, it is necessary to set out the legislative provisions related to appointment and discipline of departmental heads.
22. Section 193(1C) and 193(1D) states that;
“(1C) The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.
(1D) The suspension from the office of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.”
23. Section 31C and 31D of the Public Services (Management) Act states that;
PROCEDURES RELATING TO REVOCATIONOF APPOINTMENTS OF DEPARTMENTAL HEADS.
“31.C The procedures relating to the revocation of appointments of Departmental Heads referred to in Section 193(1C) (appointments to certain offices) of the Constitution are as follows:-
refer the matter to the Departmental Head of ҈& < < &##10;& &##160; &##10;& &##160;&ـ&600;҈1160;&ـ҈  rtmenPersonnel Mannt ment ment ̵–
>shall –
31D.The procedures relating to the suspension from the office of Departmental Heads referred to in Section 193(1D) (appointments to certain offices) of the Constitution are as follows; -
investigate any activities, conduct or performance of a Departmental Head which would constitute grounds for revocation of appointment under a contract of employment entered into that Departmental Head under Section 28; (sic)
24. At the outset, Section 8 of the Regulatory Statutory Authorities (Appointment to Certain Officers) Act 2004 relates to suspension of chief executive officers. I am of the view, that this law is not applicable to departmental heads. The process stipulated in that Act is primarily for statutory authorities who are prescribed in Schedule 1 of the Regulatory Statutory Authorities (Appointment of Certain Officers) Act 2004. The Department of Works and Implementation is a department of the National Public Service. To determine a question of suspension or revocation of a departmental head’s appointment the applicable law is the Constitution and the Public Services (Management) Act1995.
25. I note that the Public Services (Management) Act 1995 was repealed by the Public Services (Management) Act 2014. In the new Act, Sections 31C and 31D were repealed. The statutory provisions for appointment, suspension and revocation of departmental head’s appointments are now provided for under the Public Services (Management) Regulations 2014. I’ am of the view that the plaintiff was suspended in 2014 prior to the change in the law therefore the decisions were made pursuant to the Public Services (Management) Act 1995.
26. The question of procedure for disciplining and revoking of departmental head’s appointments has been judicially considered and canvassed by the National Court in cases like Lupari v. Sir Michael Somare(2008) N3476, Damen v. Maipakai(2004) N2730 and the recent case of Joseph Klapat v. The NEC (2014) N5536. The Court was of the view that the procedure for discipline of departmental heads was provided for under statutory provisions in the Public Services (Management) Act and the Constitution. Therefore the process is mandatory. The National Executive Council had limited discretion to choose which process to undertake. The National Executive Council is obliged by law to follow the prescribed statutory process.
27. In the first ground of review, counsel submitted that the defendants breached section 26.2 of the Terms and Conditions of Employment. According to that section, the Public Services Minister is obliged to provide a written report outlining the allegations and evidence of the serious disciplinary offences that were allegedly committed by the departmental head. The report should contain an assessment and recommendation on whether suspension is to be effected. The report should be promptly submitted to the Public Services Commission to enable it to establish whether there are sufficient grounds for suspension of the departmental head.
28. The plaintiff argued that the respondents breached Sections 193(1C) and 193(1D) of the Constitution, Sections 31C and 31D of the Public Services (Management) Act and Section 26 of the Standard Terms and Conditions of the Employment of Departmental Heads contract of Employment. He argued that his remedy lay in judicial review. The plaintiff’s appointment was made by virtue of a statutory provision and the statutory process was applicable. Therefore the process stipulated in his contract of employment was a public contract of employment therefore amenable to judicial review. Furthermore, having established that the defendants’ had committed serious errors of law, this Court should grant an order of certiorari to quash the decision of the National Executive Council on 12thFebruary 2013 and reinstate the plaintiff to the position of the Secretary of Department of Works and Implementation.
29. The defendant’s on the other hand, argued that the decision subject of review is the State’s decision to revoke the plaintiff’s contract on 12th November 2013. There is no issue with the previous suspensions. The decision subject of this judicial review is the decision to revoke the appointment. The process of the revocation is stipulated in section 16 of the Contract of Employment.
30. In regard to the law on suspension of departmental heads, Makail J in Klapat v. NEC (supra), succinctly summarised the pertinent steps of the procedure. I agree and adopt the views expressed by His Honour at paragraph 49 of his judgment as follows;
“Recapping and re-enforcing the discussions on the procedure of suspension, according to s.31D of the Public Services (Management) Act 1995, suspension of a Departmental Head occurs in two ways; first, by the Commission on its own volition conducts an investigation and secondly when it conducts an investigation at the request of the Minister for Public Service. In each case, where it is of the opinion that the Departmental Head should be suspended from office, it shall recommend to the NEC to suspend the Departmental Head. The point to emphasise here is that the investigating authority in relation to the question of suspension of a Departmental Head pending investigation into allegations of misconduct in office is the Commission and it is the only body that recommends to the NEC to suspend a Departmental Head.” (Emphasis mine)
31. The issue for determination before this Court is whether the suspension of the Departmental Head on 27th February 2013 and published in the National Gazette G117 of 2013 dated 20th March 2013 was lawful. I will deal with the issue of suspension first, then consider the issue of revocation of appointment.
32. According to the evidence in the plaintiff’s affidavit filed on 24th of January 2014. He stated that on 12th December 2012 he had hand- delivered a copy of his response to the allegations to the Chairman of the Public Services Commission. He stated that there was no panel interview by the Commission. At least two out of the three Commissioners were required to interview the departmental head as was the normal practice. On 20th December 2012, the Chairman did not carry out an independent investigation but proceeded to recommend his suspension from office.
33. According to the evidence in the affidavit of John Kali, the Commission recommended to the Public Services Minister that the plaintiff should be suspended on 6th February 2013. The reason why there was a delay was because the plaintiff filed an application for judicial review (OS (JR) NO. 776 of 2012). Leave was granted to review the first decision of the Minister for Works and Implementation’s suspension of the plaintiff on 1stDecember 2012. The plaintiff obtained an ex parte interim restraining order against the defendants restraining them from suspending him. On 14thMarch 2013, the Court dismissed the substantive judicial review application on the ground that there was no decision to review. The suspension of the plaintiff was administratively dealt with and the Minister’s suspension letter of 1st December 2012 was not effective. A copy of the court transcript of the proceedings is annexed as “Annexure WI” to the Affidavit of John Kali.
34. The evidence before me, indicates that the procedure for suspension was not complied with. There is no evidence that the Public Services Commission independently investigated the matter. According to the letter from the Commission dated 20th December 2012; it stated that they had given an opportunity to the plaintiff to respond to the allegations levelled against him. Based on the plaintiff’s response they were able to conclude that there was a prima facie case. I am of the view that it is not sufficient to conclude that there is a prima facie case. The Public Services Commission is an independent Constitutional body vested with important duties, functions and responsibilities which are derived from the Constitution. Such Constitutional duties should not be taken lightly. I appreciate that the Commission is only considering the issue of suspension and this does not entail or require a thorough report. But bearing in mind, their Constitutional duties, and a cursory examination of the allegations is necessary in order to diligently discharge their Constitutional duties. The Commission should not only hear from the departmental head but also the appointing authority or complainant. The Commission must weigh the information before it and assess whether there is prima facie case. A prima facie assessment requires the application of the reasonable man’s test. The Commission must put himself in the reasonable man’s shoes and consider whether based on the information before him there is reasonable cause to suspend the departmental head from duties.
35. The plaintiff does not deny responding to the Commission and meeting the Chairman on 12th December 2012. However, there is no report by the Commission in evidence to prove that they did investigate the matter before recommending suspension to the National Executive Council. Therefore, I find that the suspension was not proper and breached the procedure in the Public Services (Management) Act.
36. The next issue to consider is, whether the second defendant complied with the statutory process stipulated in Section 31C of the Public Service (Management) Act 1995 when they revoked the plaintiff’s appointment as the departmental head.
37. The defendant submitted that the revocation of the plaintiff’s contract was made lawfully. There was no breach of the Public Services (Management) Act or the Constitution. This application for judicial review is misconceived. The plaintiff is making submissions in regard to alleged breaches of the procedure as contained in section 26 instead of making submissions in regards to Section 16 of the Terms and Conditions. Therefore the plaintiff’s application for judicial review is misconceived and should be dismissed with costs.
38. The two modes of revocation of a departmental head’s appointment is clearly set out in Section 31C of the Public Services (Management) Act. The revocation of a departmental head’s appointment can either be initiated by the Public Service Commission on its own volition or by the way of a request from the National Executive Council. Regardless of who initiated the revocation process, the next step in the process is mandatory. The Commission must refer the matter to the Secretary of Personnel Management to investigate the allegations and report back to the Commission within thirty (30) days from the date the matter was referred.
39. The plaintiff was suspended in February 2013 and his appointment was revoked in November 2013. The time limit for investigation of the allegation and reporting the findings back to the Commission is 30 days. Clearly, there is a delay of (8) eight months. In explaining the delay, the defendant’s counsel contented that the plaintiff’s conduct contributed to the delay. He instituted multiple court proceedings, obtained injunctions and filed contempt proceedings which affected the process.
40. I am of the view that the statutory time periods stipulated in the law are mandatory, whilst the plaintiff’s conduct may have affected or hampered the defendant’s actions; I am of the view that these excuses do not constitute a valid or good reason for the delay. The State is the employer and should follow the lawful process. The plaintiff, though clearly frustrated by the way he was treated was a public servant for 38 years. He was only exercising his right to seek legal redress. He cannot be blamed solely for the delay. His legal representative also contributed to the delay. The legal advisors of the defendants must also assume some of the blame for not providing proper and adequate legal advice. I find that there are no exceptional circumstances that justify the defendant’s failure to comply with the procedure.
41. Furthermore, I find that the independent investigating committee established by the defendants is unlawful. According to the Terms of Reference a one-man investigation team comprised of Mr Trevor Meauri (Deputy Secretary – Policy, Department of Prime Minister and NEC) and chaired by the Secretary for the Department of Personnel Management is flawed for two reasons. Section 31C of the Public Services Management Act requires the Secretary of the Department of Personnel Management to investigate the matter. Secondly, the investigation committee is lawfully established under the Public Services Management Act and not under the Prime Minister and National Executive Council Act 2001 as was the case here. Also, establishing a one-man investigation is in my view, highly irregular and inappropriate. Having a single member investigation team increases the risk of bias and apprehension of bias. The process and conduct of the investigation will not be a balanced exercise. Ultimately any findings or report may not be a thorough or impartial reflection of the investigation.
42. Therefore, I find that the process of revocation is not complied with and that they are serious breaches of law, accordingly I uphold the ground to review.
2. Denial of Natural Justice.
43. Mr Mann-Rai of counsel for the plaintiff argued that the plaintiff was not given an opportunity to show cause why he should not be
suspended. He argued further that the defendant’s did not explain or give reasons why he should be suspended or terminated.
Also, the defendants ignored the fact that he was the incumbent of the position and decided to revoke his position.
44. The defendant’s argued that the plaintiff was given an opportunity to be heard. Mr Mapiso of counsel for the first and second defendant’s submitted that the clause for revocation of contract was provided for under Section 16 of the Terms and Conditions of Employment.
45. It is trite law that public officials are required to observe the principles of natural justice. Even in instances where the law does not clearly express the duty to give reasons, the Constitutional provisions impose a duty to give reasons: Ombudsman Commission v. Peter Yama (2004) SC 747. Section 31D of the Public Services (Management) Act 1995 imposes a mandatory requirement on the Commission to make recommendations to the National Executive Council. This is done through the Minister for Public Services, as the minister responsible for the National Public Services. I am of the view that it goes without saying that the Commission has a Constitutional duty to observe the principles of natural justice.
46. The plaintiff did not deny submitting a response to the Public Services Commission on 12th December 2012 and a copy of his response is provided in his affidavit.
47. The evidence before me indicates that the defendant was not denied natural justice in regard to his suspension. However, in regard
to the revocation of his appointment as a departmental head, I find that he was denied natural justice. According to the affidavit
of John Kali, the State was of the view that the plaintiff’s appointment should be revoked because there were a number of allegations
of misconduct which were subject to criminal proceedings as well as the disciplinary process under the Public Services (Management) Act. Furthermore, the relationship between the plaintiff and the appointing authority had broken down due to multiple Court cases and
proceedings against the employer. According to the defendant’s, it was in the State’s interest that the plaintiff’s
appointment was revoked pursuant to Section 16.1(b) of the Terms and Conditions.
48. There is no evidence to show whether the plaintiff was informed of the allegations and whether he was given the opportunity to respond before his appointment was revoked. Also, there is no evidence that the Investigation Committee provided a report before me. It is not enough to allege he did not co-operate. The defendant must produce evidence to show that they asked the plaintiff to attend interviews and that he did not attend. Evidence such as correspondence would have been sufficient. Evidence should also be produced by the Investigation Committee to show the attempts they took to get the plaintiff to co-operate and his refusal to co-operate. There is no evidence by the defendant’s to support their assertions. The lack of evidence indicates that there were no attempts made to contact the plaintiff and therefore he was denied the opportunity to respond. Therefore this ground of review is also upheld.
3. Wednesbury Principles of Unreasonableness.
49. The plaintiff contended that the decision to revoke the plaintiff’s appointment and advertise the position of Secretary for
Works and Implementation is unreasonable. The common law principles of unreasonableness derived from the classic case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233has been adequately canvassed in the case Ombudsman Commission v. Peter Yama (2004) SC747. When applying those principles to the present case, I am of the view, that following the revocation of the plaintiff’s appointment
in November 2013, the position of the departmental head became vacant. It is not unreasonable for the State to exercise its discretion
to advertise the vacancy and appoint a person to the position. Notwithstanding, the finding by this court that the suspension and
revocation of the plaintiff was unlawful, it is the prerogative of the State to fill a vacancy of one of its key department in the
National Public Service. The Court should exercise caution when delving into the sphere of administrative and executive acts in order
to respect the age-old principle of the Doctrine of Separation of Powers. Therefore, I find that it is not unreasonable for the defendant’s
to commence the recruitment process. The appointment or revocation of departmental heads is the prerogative of the State. This ground
of review is misconceived and is dismissed accordingly.
4. Decision of the Supreme Court in Lumav. Kali (2014) SC 1401.
50. The plaintiff argued that the decision of the Supreme Court in Luma v. Kali (supra) unanimously stated that defendant’s unlawfully terminated the plaintiff. He stated in his affidavit filed on 25th May 2015 at paragraph 8 that “...the Supreme Court in their judgment on 14thNovember 2014 made it very clear that the defendants failed to follow proper procedures under the Contract of Employment as well
as the Public Services (Management) Act 1995 and the Constitution when the defendant’s suspended and terminated me.”Mr Mann-Rai of counsel for plaintiff also submitted that the Supreme Court had ruled that the defendant’s actions in suspending
and terminating the plaintiff were illegal.
51. The defendant argued that the plaintiff’s submission that the Supreme Court decision in Luma v. Kali(2014) SC1401decided that the plaintiff’s suspension was unlawful and that the plaintiff could seek a review of the decision was misconceived and should be rejected.
52. I am not convinced that the Supreme Court made a determination of whether the plaintiff suspension and termination was unlawful. Upon careful consideration of the judgement, I am of the view that the Supreme Court only concluded that the plaintiff did have an arguable case. The arguable nature of the case was that defendants had not followed the prescribed procedure. The Supreme Court concluded that the plaintiff had an arguable case. I reject the plaintiff’s submissions has been frivolous and vexatious. Therefore this ground of review is also dismissed.
Relief sought
53. There are two pertinent steps involved in the process of determining judicial review applications. Firstly, the Court must be satisfied that the applicant has proven one or more of its grounds of review. Secondly, if it is proven one or more of its grounds of review, then the court has the discretion to determine what is the appropriate remedy or relief to be granted: MisionAsiki v. ManasupeZurenuoc (2005) SC 797 and Dale Christopher Smith v. Minister for Lands (2009) SC 973.
54. The plaintiff has proven two grounds of review and that is the suspension and revocation were not made in compliance with mandatory procedure in the Constitution and the Public Services (Management) Act and that he was denied natural justice. The next issue to determine is the appropriate relief to be granted in the circumstances.
55. The relief, the plaintiff has sought is set out in the Amended Notice of Motion filed on 15thJune 2015 which includes an order for certiorari and other declaratory orders. He also seeks an order reinstating him to the position of Secretary for Works and Implementation. An injunction restraining the defendants from appointing another person to the position. Alternatively, he seeks damages to be assessed.
56. I consider that the breach of the statutory mandatory procedure is serious and so flagrant that it should not be allowed to stand. Therefore in the exercise of my discretion the decision to suspend the plaintiff on 21st February 2013 and the subsequent revocation of his appointment on 12th November 2013 as the Secretary for Department of Works and Implementation shall be brought into this Court and quashed forthwith.
57. In regard to the relief of reinstatement. I adopt the views of Injia DCJ (as he then was) in the case of Issac Lupari v. Sir Michael Somare (2008) N3476. Before considering whether to exercise the Court’s discretion to reinstate a successful applicant, the following factors should be taken into consideration;
58. In the present case, when applying these principles to the facts, I find that the current status between the plaintiff and his superiors appears to have broken down. There has been multiple court cases which has irreparably harmed their working relationship. It would be unreasonable for the Court to reinstate him back to the position thereby compelling the defendant’s to work with him again. This would only create an environment of chaos and animosity.
59. I am of the view that the damages would be an appropriate remedy. The plaintiff is still at liberty to make a claim for the damages either based on the provisions of the contract or through a common law claim for damages. It would be better to bring the damages under a writ of summons so he can plead the particulars of his claim. Even though he amended his statement of support to plead the damages to be assessed, I’ am of the view that the pleadings are not sufficient.
60. Order 16 Rule 7 of the National Court Rules empowers the court to exercise the discretion to award damages to a successful applicant if he has included a claim for damages in his Statement of Support pursuant to Order 16. The plaintiff has only asked for “damages to be assessed,” I am of the view that as plead, the pleadings are not sufficient. There must be substantial compliance with the Rules before the court can exercise its discretion to award damages. For that reason, I refuse to exercise my discretion to grant the order for damages to be assessed. This does not mean the plaintiff is left without a remedy. He is still at liberty to either amend these proceedings or file another proceeding by way of a writ of summons or originating summons seeking damages for unlawful termination of employment.
61. In regard to the relief sought, it is trite law that the grant of relief is discretionary. Equitable principles like the equitable
maxim of “he who comes to equity must come with clean hands,” is applicable in the present case. The plaintiff was suspended
from the office and his appointment was revoked on serious allegations of misconduct. Those allegations included fraud, nepotism,
insubordination and incompetency. Notwithstanding the plaintiff’s right to be heard and the right to innocence, they are serious
allegations, so serious that the Minister and the Secretary thought it warranted further investigation and possible disciplinary
action.
62. The plaintiff in his affidavits vehemently denies the truth of those allegations. However, I am of the view the response he gave
did not conclusively settle the issues between him and the defendants. The question of the truthfulness of allegations is still open
to speculation. Given that situation, I am of the view that the plaintiff did not come to court with clean hands, therefore the relief
of reinstatement is not appropriate.
63. The next consideration is whether reinstatement would be appropriate or in the interest of the public. The public interest lay in the good administration of the Department of Works and Implementation. The plaintiff’s appointment was revoked in November 2013. He was suspended in February 2013. It has been 3 years since the plaintiff has been out of the office. In my view, that is a long time. If this Court was to reinstate him to the position it would be prejudicial to the public’s interest in ensuring the good administration of the Department of Works and Implementation.
64. In addition to that, the position of Secretary of the Department of Works and Implementation has been filled and there is no vacancy. According to the affidavit of Mr David Wereh, he was appointed by the National Executive Council permanently on 27thMay 2014, which will expire on the 22ndMay 2018. Evidence of the appointment is annexed in the Affidavit of John Kali and I duly take judicial notice of the National Gazette G211 of 2014.
65. For those reasons, I refuse the relief of reinstatement and damages. It would be prejudicial to the defendant’s and it would not be good for the administration of this key Government Department.
Conclusion
66. Having fully considered the matter and upheld two grounds of review and in the exercise of my discretion, the plaintiff’s application
for Judicial Review is granted. The decisions to suspend the plaintiff on 21st of February 2013 and subsequently revoke the plaintiff’s appointment as the Secretary for Works and Implementation is quashed.
Costs follow the event and the defendants are to pay the plaintiff’s costs of and incidental to the proceedings to be agreed
if not taxed.
Mann- Rai Lawyers: Lawyer for the Plaintiff
Legal Services: Lawyer for the Defendants Guardian
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