Lara v Samy [2020] PGNC 160; N8352 (4 June 2020)

N8352

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 901 OF 2019

WAPSON LARA
Plaintiff

V
BR. ANTHONY SAMY, Principal Dela Salle Secondary School
First Defendant

AND
SAM LORA, Assistant Secretary NCD- Education Services
Second Defendant

AND
THE APPOINTMENTS OFFICER NCD Education
Third Defendant

AND
THE SECONDARY SCHOOL COORDINATOR NCD
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2020: 04^th June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of motion –Order 12 Rule 1 NCR – Restraining Order – Eviction stay – discretionary – Exceptional circumstances – Leave granted – delay in making application – arguable case – overall interest of Justice – balance of convenience – undertaking as to damages – cost follow event.

Cases Cited:

McHardy v Prosec Security and Communications Limited [2000] PGSC 22; SC646 (30 June 2000).

Counsel:

T. Ilaisa, for Applicant

No appearance for Respondents

RULING

04^th June, 2020

1. MIVIRI, J: This is the ruling of the court on an application seeking pursuant to Order 12 Rule 1 of the National Court Rules, “the Rules” and section 155 (4) of the Constitution an order restraining the first defendant and the Chairlady of the Board of Governors of the Dela Salle Secondary School and all the servants and agents from forcefully evicting the plaintiff and his family from the institutional house at the subject school until further orders of the court.
   
2. Leave to review has been obtained before this court on the 2^nd June 2020 with orders for the filing of the substantive Judicial review proceedings and directions has been set for Monday the 8^th June 2020 at 9.30am.
   
3. Without going into the details of the substantive matter the applicant is a registered teacher who was teaching at the subject school since 2010 and this year 2020 will be his tenth year serving that school. He is married with two young children aged 10 and 7 years old both attending school at the Wardstrip Demonstration School. Together all live at the school in an Institutional house provided for the time that he has been in that employ. He has been told to vacate that house and to make way for new teachers there. He is no longer in the position he held in the school as a teacher and has been told to vacate the institutional house with his family since the 8^th of May 2020 by the Chair lady of the Board of the school by letter of that same date. He has confirmed by affidavit dated the 2^nd June 2020 in support of this motion these material facts.
   
4. He deposes that on the 2^nd June 2020 at 4.17pm a Police 10 seater land cruiser registered ZPD 345 with SSD 02 inscribed on its side and a unmarked 5 door Toyota land cruiser pulled at his residence at the subject school. Ten (10) policemen accompanied and were going to forcefully evict him. They had a chain and new locks and were about to lock him with his family out of the property. He pleaded and explained the status of the proceedings and they retreated affirming that he will be evicted on the 5^th June 2020.
   
5. Order 12 Rule 1 is in broad terms giving the court discretion to direct the entry of such judgement or make such order as the nature of the case requires notwithstanding the fact that the applicant does not make a claim for the relief extending to that Judgment or order. Given the facts and circumstances set out there is jurisdiction established by the applicant and the inherent powers of the court under section 155 (4) of the Constitution is applicable here given the facts and circumstances set out above. The Plaintiff is seeking a stay of the eviction intended against him by the defendants. He invokes the discretion of the court which I exercise judicially.
   
6. In this regard on point is McHardy v Prosec Security and Communications Limited [2000] PGSC 22; SC646 (30 June 2000). And the following are relevant whether he has an arguable case prima facie. He challenges the process that there were no investigations nor was he given the right to be heard in his defence. The process under his employment were not followed by the Defendants. There was therefore prima facie error of law to derail him from his employment and engagement at the subject school for 10 years running this year since 2010. His position at the school was given without justice disclosure as to the reasons why he lost out on it. He demonstrated no ill to be displaced from it. Hence the actions that he derailed called for cause in law prima facie in a proper hearing of review of the decision by the first defendant a public official in a public school where the plaintiff/applicant was employed for 10 years. These rise that there is discharge of the required balance that he has an arguable case. And these is set by NTN Pty Ltd v The Board of Post & Telecommunication Corporation & Ors [1987] PNGLR 70 which are in favour of the applicant by his facts here. This is made out in the application here.
   
7. He has not delayed in the application and the nature of the matter to be stayed involved his basic rights to accommodation. He is married with two young children and a wife who will be evicted should there be no stay granted. Coupled with what is set out above the balance would be in his favour to stay eviction pending his judicial review proceedings. In this regard should the defendants be prejudiced or inconvenienced he has filed an undertaking for damages dated the 2^nd June 2020 should an interlocutory injunction or stay be granted against his eviction. Given it is my view that the overall interests of Justice and the balance of convenience stem that a temporary stay be granted to the applicant against his eviction from the Institutional house at the Dela Salle Secondary School.
   
8. Accordingly, his motion of the 2^nd June 2020 is granted in the terms as is filed. All the defendants named are restrained by themselves severely or jointly or by their servants or agents restrained from evicting the plaintiff or his immediate family from the residence that he occupies at the Dela Salle Secondary School forthwith.
   
9. This order extends and is returnable before this court on the 30^th of June 2020 and liberty is granted to the parties to vary or extend upon application before the court according to law.
   
10. Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff/Applicant

No appearance for the Defendants