Ipata v Kereme [2020] PGNC 389; N8592 (22 October 2020)

N8592

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 78 OF 2017

BETWEEN:
JIMMY IPATA
Plaintiff

AND:
DR PHILIP KEREME as Chairman of the Public Services Commission & the Public Services Commission
First Defendant

AND:
DAVID WEREH as Secretary of the Department of Works &The Department of Works
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 11^th September, 22^nd October

PRACTISE & PROCEEDURE – Judicial Review & appeals – Substantive Notice of motion –Order 16 Rule 5 NCR – Whether Judicial review lies – Assistant Secretary HR – Works Department – Failure to resign 6 months before 2012 Election – Contested National Election Lagaip Porgera Open seat – Breach of General Order – Breach of Employment Contract – Charges – hearing – Guilty of – Appeal to Public Service Commission – He who comes to Equity must do equity – Balance not discharged – Judicial Review denied – cost follow event.

Cases Cited:

Aihi v The State (No. 1) [1981] PNGLR 81
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Lupari v Somare [2008] PGNC 121; N3476

Counsel:

J. Ipata in person
E. Bua, for Respondents

RULING

22^nd October, 2020

1. MIVIRI, J: This is the ruling of the court on the substantive notice of motion pursuant to Order 16 Rule 5 of the National Court Rules, (“the Rules”) for Judicial Review of the decision of the Public Services Commission the First Defendant of the 15^th April 2014 in upholding the decision of the second defendant of the 15^th May 2013 which decision terminated the employment of the plaintiff as Assistant Secretary (HR) of the Department of Works.
   
2. Primarily what is underlying by the plaintiff from all that he has placed by his affidavit filed on the 27^th February 2017, including that of Kepas Misikaram of the 18^th April 2017, of William Kupe of the 1^st May 2017, Marcus Nandape of the 22^nd May 2017, additional affidavits of the plaintiff of the 25^th July 2017, 11^th of March 2019 and of the 28^th of February 2020 are that the decision could not stand because he never resigned from his employment, that he was employed 18^th to the 24^th May 2012 and never nominated to contest the National Election. Hence his dismissal was erroneous because there was conspiracy to remove him from his job because of major payroll fraud that he had uncovered and was investigating. And the charges against him were manufactured including the disciplinary procedures were abused and breached under the Public Service Management Act for his removal to achieve personal agenda.
   
3. In particular, he asserts that he was not accorded opportunity to be heard in the penalty on his termination and therefore breached section 59 of the Constitution. Termination was harsh and oppressive. Secondly, he contends that he never made rebuttal to the response by the Department. And the determination that followed by the First defendant cannot stand against him. There was procedural error of law on the face of the record and should be set aside as judicial review lies. And certiorari is open to bring into this court that decision to be quashed forthwith. These are the bare essentials of the Plaintiff’s submission filed 17^th June 2020 dated the same comprising 53 pages in all.
   
4. The plaintiff has come to plea for Equity; He who comes to equity must do equity. No one is entitled to the aid of a court of equity when that aid has become necessary through his or her own fault. Equity does not relieve a person of the consequences of his or her own carelessness. A court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created. Equity will not grant relief from a self-created hardship. This is heart to the powers under section 155 (4) of the Constitution that this court dispenses in the administration of Justice here: Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981).
   
5. What sets out this substantive notice of motion is that the Plaintiff is and was the Assistant Secretary Human Resources Division of the Department of Works. He was in the top category of that Department. He managed, controlled and set in place policies for the Department as a whole country wide in respect of all human resource matters. He was in the employ since 28^th February 1983 and had worked his way up to being the Assistant Secretary human Resource Division of the Department of Works. He is the principle advisor to the Secretary of the Department in all Human Resource matters pertaining to that Department. He is versed with the Public Services Management Act in his line of duties there including the General Orders and in the instant relevant to this proceedings, General Order 20.11.
   
6. What emanated eventually to his demise was simply that the termination was as a result of his failure to resign in accordance with General Order 20.11. That is, he should have resigned six (6) months prior to the issue of writs for the general elections on the 18^th May 2012. The public Services Commission confirmed and upheld the decision taken by the Acting Secretary of the Department of Works to terminate his services as Assistant Secretary Human Resources. Because He had failed to resign from the Department of Works as Assistant Secretary Human Resources within 6 months prior to the issue of writs on the 18^th May 2012. If he had done so this would have been on or about the 18^th November 2011. He was still employed and on the payroll of the Department.
   
7. To weigh out both sides of the dispute it is necessary to look at independent Records from the Electoral Commission. Independent because they are not interested in the matter as to how it comes out be it for the Department or the Commission. They are providing materials that come into their domain on account of the work they do at the 2012 national elections. Here this showed that Plaintiff had submitted candidate information form 29 and his photograph to the commission on the 23^rd February 2012 indicating his intention to contest the Lagaip-Porgera open seat. And in pursuit he deposited the K1000 nomination fee at the Bank of South Pacific, Mt Hagen on the 23^rd May 2012 with Deposit number 0520 evidencing and that he personally signed and submitted the Nomination of Candidate for Election as a Member of National Parliament form 23 to contest that seat at 2.00pm on the 24^th May 2012 at the Laiagam District Office. Electoral Commission official receipt No. EC/01707 dated 24^th May 2012 receipt of the K1000 nomination was issued to him. And Ballot box number 16 was allocated to him in the name, “Sakare Jimmy Yapis Ipata” as an independent candidate with photograph on the candidate poster. Which was approved by the Electoral Commission officer one A. Yapen on the 05^th June 2012.
   
8. All these materials are independently and severely attached to the annexure “B” of the affidavit of Dr Philip Kereme sworn 20^th December 2017. They verify independently the assertion made with material by the Bank and the Electoral Commission. And this happened whilst he was still a Public Servant employed in the Department of Works because he went on recreational leave on the 06^th June 2012 which was the commencement of the campaigning and polling. And he was charged with this offence on the 09^th April 2013 by the Acting Secretary David Wereh. And delivery of the Notice of Disciplinary Charges were certified as being served on the 09^th April 2012 at 3.43pm at the Department of Works Compound residential location on the plaintiff who acknowledged service by signing and dating and timed with same by one Mathew Michael witnessed by driver Joe Ere.
   
9. These materials were the source of the decision by the Public Services Commission. The affidavit of Dr. Philip Kereme dated the 20^th December 2017 who holds a Ph.D. the first defendant chairman of the Public Services Commission deposed that on the 21^st February 2013 the Plaintiff lodged his review application with the Commission. And he attaches that as annexure “A” to his affidavit. That form is headed Section 18 Public Services Management Amendment Act 2002 Application for Review of a Personal Matter. At the outset are the personal details of the plaintiff. The form is numbered into parts and at number 3 Statement of Facts the date of the decision is dated as 1^st of August 2012-suspended, Charged-13^th November 2012 Responded-19^th November 2012-Decision on penalty lapsed and kept suspending.
   
10. And over the page of that document is the reasons of the plaintiff coming to the Public Services Commission, abuse and breach of Legislative Acts; Secretary is biased and his decision on discipline is based on personal agenda; decision on penalty lapsed since responding to charge & kept suspending; promoting private indulgence through public office without respect for him; Failing to maintain a level playing field in regards to discipline. And all supporting documents are attached to that form which is dated 21^st February 2013 signed by the Plaintiff.
    
11. Over the page is Form SOC 9.3 office reference is JI 01/2012 Notice of Disciplinary Charges under section 25 of the Terms & Conditions of a Contract of Employment and it is to the Plaintiff Jimmy Ipata with his address. It reads “Please take Notice that: Pursuant to the provisions of your contract of employment, you are hereby charged under section 25 with having committed a serious disciplinary offence within the meaning of section 20, thereby breaching your contract, namely that....” and sets out the particulars of his contesting the 2012 National Elections and what he did particulars which are relied on by the defendants set out above. And it sums that the actions have breached section 20 (a) and (c) of the Contract of Employment.
    
12. That section is set out as follows that section 20 of Contract “B” Category A senior officer who: (a) Commits a breach of provisions of any Act, Regulations, Public Service rule, or General Order, or this Contract; (b).....(c)wilfully disobeys or disregards a lawful order (d)...( e)...(f)... Then the Senior Officer is guilty of serious disciplinary offence and the Secretary for the Department of Personal Management acting on advice from the Departmental Head may immediately terminate the employment without notice provided that the Disciplinary procedure under section 25 has been implemented.
    

And over the page of that form continues, “ Please take further notice: That in accordance with section 25, of the Terms and Conditions, you are required to respond in writing to the charges within 7 days of receipt of the charges, to enable you to state whether you admit or deny the truth of the charges, and give any explanation in writing that you may think fit for my consideration. And Please take further Notice: That should you fail to respond in the manner required, within the stipulated time, you may be deemed to have admitted the truth of the charges, and thereby render yourself liable to termination for cause. It is dated the 9^th April 2013 and signed by David Wereh Acting Secretary details of service by the plaintiff are set out above.

13. Also attached over the page is Public Service Management Act form SOC 9.4 offence reference: JI 01/2012 Decision of the Departmental head in respect of each disciplinary charge under sections 25 of the Terms & Conditions of a Contract of Employment of Mr. Jimmy Ipata- Contract “B” Category. The form sets out “To: Mr. Jimmy Ipata, Department of Works P. O. Box 1108, Boroko NCD. Please take notice that; Pursuant to the charges laid against you under section 25 of your contract of employment, offence reference shown above, and following consideration of your responses to the charges and based on legal advice relating to the charges and your responses, I have determined that:
    
    • (1) You have seriously breached General Orders 20.11 where you failed to resign in order to contest the 2012 National Election.
      
    • (2) You have seriously breached General Order 20.12 where you failed to submit a Resignation Letter to your Department Head for approval as specified in this General Order.
      
    • (3) You have failed to comply with the DPM circular Instruction No. 7 of the 18^th May 2012 which was a reiteration of GO 20 as regards to contesting National Elections. This amounts to a breach of a lawful instruction.
      
    • (4) Evidence from the Electoral Commission indicates your compliance with the Election procedures and your participation in the 2012 National Elections as an Independent Candidate for the Laiagap-Pogera Open Seat.
      
    • (5) Electoral Commission advised you it was not possible to withdraw your nomination hence you were an eligible candidate for the Laiagap-Pogera Open seat.
      
    • (6) Your claim of Forgery of documents is inconsistent with evidence from the Electoral Commission and documents available on record.
      
    • (7) In respect to the Findings above, the charges against you is sustained.
      
    • (8) You have breached section 20 (a) and (c) of your contract which states that a senior officer who: (a) commits a breach of provisions of any Acts , Regulations, Public Service Rule, or General Order, or this Contract” and (c) wilfully disobeys or disregards a lawful order” which in this case is the DPM Circular Instruction No.7 of 2012 dated the 18^th May 2012 which was a further reiteration of General Order 20 specifically reminding Public Servants to comply with Provisions relating to contesting National Elections PLEASE TAKE FURTHER NOTICE: that I have determined appropriate disciplinary action consistent with my findings in respect to the charges laid above as follows:

Termination of the Contract and termination of Public Service Employment.

14. The form continues advising the plaintiff that he has a right of appeal against the penalties determined by me through the Public Services Commission and is signed by David Wereh as Acting Secretary dated the 15^th day of May 2013.

At the bottom of the form is handwritten notes by one Mathew Michael Acting Manager IR witnessed by one Brett Philip dated the 15^th May 2013 “ Note: I have made three (3) separate attempts to serve this notice on the officer at the officers last known address which is his residential location (DOW Compound) but to no avail as the was not there. Therefore, the notice is now served on the officer’s daughter Ms Doris Ipata at the above date, time, and location, first attempt was made at 11.30am. In the receipt box where the name of the Plaintiff is the signature of the daughter Doris Ipata dated the 15^th May 2013.

15. Then over the page is the 18 pages grounds of appeal that the plaintiff has lodged with the Public Services Commission in respect of the matter.
    
16. Then annexure “B “to the affidavit of the Dr Philip Kereme is reference PSC2-23-DOW: 23/2013 is the transcript of the proceeding within the Public services Commission. It is clear that the plaintiff cause of action was attended in that a fair transparent and accountable manner giving effect to section 59 of the Constitution. There appears apparently no identifiable matter against the application of section 59 on the face of that record.
    
17. Annexure “C” is the response by the secretary for works in respect of that matter dated the 18^th September 2013 to the application for review of a personal matter by Jimmy Ipata. Attached to this letter are very important materials that include all the matters I have set out in detail above relating.
    
18. What is evident is the Public Services Commission established by the Constitution sections 190, 191, and 192 has before it all the material which are set out above. It comes to the same decision as the Department of Works. It confirms that decision including the penalty of dismissal from the Public service of the plaintiff. These are independent persons at different locations of the sphere of discipline of the Public Service Management both not related in any way or form corroborated independently by the Electoral Commission by its material obtained from the way it conducts its business from the Bank and photographs depicting the plaintiff as entering nominations as a registered candidate running that race for the seat of Laiagap Pogera in the 2012 National Election whilst still a serving member of the Papua New Guinea public service in the office of Assistant Secretary Human Resource Division at the Department of Works. And who is running as a candidate whilst on recreational leave. Clearly there can be no other conclusion open except that the Plaintiff has come to equity with no clean hands and therefore cannot seek equity. He who seeks equity must come with clean hands. Here for the reasons set out above the plaintiff/applicant does not qualify as coming with clean hands. He draws it upon himself and must bear the consequences of that action. There is no merit in the application for judicial review by the motion. It is dismissed in its entirety. He will be accountable for the cost of the proceedings.
    
19. There is neither substantive ultra vires nor procedural ultra vires. He was accorded a process of law and accorded the opportunity as to what was alleged against him. And that he was given opportunity to respond against that allegation after which it was determined as set out in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797(28 October 2005). It was clearly in compliance of section 59 of the Constitution. There was no breach of natural justice within the meaning of section 59 of the Constitution. And in the light of all set out above was reasonable decision and would stand in law given. It is not on the same footing as with Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008) because there is no mischievous failure to observe the mandatory process of the law and the rule of law.
    
20. The formal orders of the Court are:
    
    • (i) The plaintiff’s application for judicial review is refused and dismissed forthwith.
    • (ii) The costs will follow the event.
      

Orders Accordingly.
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