Job v Gena [2020] PGNC 474; N8737 (24 November 2020)

N8737

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 296 OF 2020

BETWEEN:
DWAYNE JOB & 6 OTHER STUDENTS OF PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Plaintiffs

AND:
DR. KAUL GENA as CHAIRMAN OF UNIVERSITY STUDENTS DISCIPLINARY COMMITTEE FOR AND ON BEHALF OF HIMSELF AND THE MEMBERS OF STUDENTS DISCIPLINARY COMMITTEE
First Defendant

AND:
GRAHAM BIDANG AS THE CHAIRMAN OF THE STUDENTS APPEALS COMMITTEE OF THE COUNCIL
Second Defendant

AND:
DR. ORA RENAGI in his capacity as the Vice Chancellor of PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Third Defendant

AND:
THE PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY
Fourth Defendant

Lae: Dowa AJ
2020: 11^th & 24^th November

JUDICIAL REVIEW – substantive review application for the plaintiffs to review decision of the defendants that resulted in the suspension of the plaintiffs for 3 years each on allegation of various offences committed on university grounds – review following grant of leave - Whether the Plaintiffs are entitled to judicial review of the decision of the Respondents – clear breach of student disciplinary procedure provided for in the Student Discipline Statute - failed to provide the necessary University Officers report to give an opportunity to the Plaintiffs to know and appreciate the seriousness of the allegations they were facing - Plaintiffs denied the chance to respond to the allegations in those reports – plaintiffs denied natural justice – irrelevant considerations taken into account without any evidence in disciplining the plaintiffs - defendants committed an error of law in making the decision to suspend the plaintiffs – decision was harsh and oppressive and unreasonable in the wednesbury sense – judicial review upheld – penalty of suspension substituted with a fine of K500 each – Order 16 rule 1 National Court Rules

Cases Cited:

Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122

Counsel:

S. Sengi, for the Plaintiffs
J. Mune, for the Defendants

RULING

24^th November, 2020

1. DOWA AJ: This is an application for judicial review, pursuant to Order 16 Rule 1 of the National Court Rules. I heard the matter on 28^th October 2020, and this is my decision.
   

Facts

2. The Plaintiffs Dwayne Job and 6 (six) others namely Cyrus Kaile, Gideon Hauta, Simeon Ganfiri, Micah Poema, Emmanuel Bateman and Exton Balson are final year students at Papua New Guinea University of Technology.
   
3. On 22^nd July 2020 the Plaintiffs were charged with various disciplinary charges for breaching University Student Rules, both under category “A” and “B”. for the offences:
   
   1. Offensive Language
   2. Nuisance and Disturbance
   100. Possession of Alcohol
   4. Drunkenness and Disorderliness
   5. Consumption of Alcohol
      
4. On 6^th August 2020, the University Student Disciplinary Committee met and the charges were heard.
   
5. On the same day, 6^th August 2020, the University Student Disciplinary Committee made a decision, finding the Plaintiffs guilty, and communicated their decision by letter dated 14^th August 2020. The Plaintiffs were suspended from studies for a period of 3 (three) years.
   
6. On 24^th August 2020 the Plaintiffs appealed the decision to the Students Appeal Committee.
   
7. On 7^th September 2020, the Students Appeal Committee of the Council deliberated on the appeal and rejected same.
   
8. Aggrieved by the decisions of 6^th August and the 7^th September 2020, the Plaintiffs applied for leave for Judicial Review.
   
9. The documents relied on:
   
   1. Originating summons
   2. Statement of Facts
   100. Affidavit of Dwayne Job
   4. Notice of motion
      

Grounds

Amongst others, the following are the main grounds:

1. Denial of Natural Justice and breach of Procedure under Section 9 (d) of the Student Rules,
2. Failure to take into account relevant considerations,

100. Error of Law,

4. Decision unreasonable,
5. Penalty harsh and oppressive.
   

10. On 25^th September 2020 leave was granted to the Plaintiffs to apply for Judicial Review. The application for judicial review was heard on 28^th October 2020 and submissions received on 6^th November 2020. The Respondents were not ready with their submissions and were granted an extension of time to file their submissions by 11^th November 2020 but have not filed any, since.
    

Issues

11. The issues for consideration are:

(1) Whether the Plaintiffs are entitled to judicial review of the decision of the

Respondents.

(2) What shall be the appropriate Orders to be made.

Law

12. The relevant law for judicial review is Order 16 of National Court Rules. Order 16 Rule 1 of the National Court Rules caters for cases appropriate for application for judicial review and provides in this manner:

(1) An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the court may grant the declaration or injunction claimed if it considers that, having regard to:

• (a) the nature of the matters in respect to which relief may be granted by way of an order of mandamus, prohibition or certiorari; and
  
• (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
  
• (c) all the circumstances of the case,
  

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.”

13. The law on judicial review is settled. In Kekedo v Burns Philip (PNG) Ltd [1988-1989] PNGLR 122, the Supreme Court stated that:

“The circumstances under which judicial review may be available are where the decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers”.

14. The Supreme Court in that case further stated that:

“The purpose of judicial review is not to examine the reasoning of the subordinate authority with the view to substituting its own opinion. Judicial review is concerned not with the decision but with the decision-making process.”

15. Applying the above principles, I will now turn to each ground of review:

Ground 1 Breach of Procedure under Section 9 (d) of the Appendix A

(Student Discipline Statute) to the Student Rules (2020 reprint)

16. The Plaintiffs allege the Respondents did not follow the procedure under Section 9 (d) of the Appendix A to the (Student Discipline Statute) to the Students Rules (2020 Reprint). Section 9(d) reads and I quote:

“All documents presented to a committee shall be made available to the

Students concerned.”

17. Mr. Sengi, counsel for the Plaintiffs submits that the University Students Disciplinary Committee (“USDC”) made their decision based on the report filed by the University Officers and the Statements provided by the Plaintiffs. Mr. Sengi submits that the Plaintiffs were not provided copies of the University Officers’ reports at or prior to the Disciplinary Committee hearing.

18. I have read the statement in support, the Affidavit of Dwayne Job, the supporting documents and submissions of counsel for the Plaintiffs. This is my finding on this ground. The decision of the University Student Disciplinary Committee was based on the University officers report and the (Plaintiffs) students’ statements. This is evident from the letter of verdict dated 14^th August 2020 issued by the Chairman of University Student Disciplinary Committee. The relevant part of the letter reads:

“The committee after considering the relevant materials (your statements and the

report compiled by the University Officers) relating to this matter, the Committee hereby found you GUILTY of the offences as charged.”

19. The evidence of the principal Plaintiff, Dwyane Job, clearly show the Plaintiffs were not given copies of the University Officers’ report. This report would have come from the warden. The evidence shows the reports were not read to them at the hearing to ascertain the seriousness of the allegations.

20. I note that the letter of 14^th August 2020 was a written confirmation of the oral decision made on 6^th August 2020. It appears the University Students Disciplinary Committee has already read and formed an opinion from those reports before the Committee meeting whilst the Plaintiffs had not been furnished the same. In my view this is a clear breach of procedure, under section 9 (d) of the Appendix A (Student Discipline Statute) to the Student Rules. The Students were not given the reports to make rebuttals. I will uphold this ground.

Ground 2 Breach of Natural Justice

21. This ground is similar to Ground 1. Mr Sengi submits, the students were not furnished the University Officers Reports at the hearing. They were denied the right to have excess to the documents that formed the basis of the charges. The Officers were not brought in for questioning by the Plaintiffs. The second leg of this ground relates to a denial by the Students Appeal Committee to present themselves during the appeal hearing. One of the reasons for rejection of the appeal was that the Plaintiffs did not present any new evidence even though the Plaintiffs did present 4 (four) witnesses’ statements.

22. As I have found in Ground 1, the University Student Disciplinary Committee failed to provide the necessary University Officers report to give an opportunity to the Plaintiffs to know and appreciate the seriousness of the allegations they were facing. The Plaintiffs were denied the chance to respond to the allegations in those reports. They were denied the chance to question any witnesses or deponents of those reports. I find this to be a breach of natural justice and breach of Section 59 of the Constitution.

23. Secondly, I also find the Students Appeals Committee failed to give the Plaintiffs the chance to address this issue before the said Appeals Committee. I note there was new evidence tendered by the sub wardens and the Students Representative
Council (“SRC”) President. If the Plaintiffs were given an audience by the Appeals Committee or seriously considered the appeal documents, there is a possibility of the reversal of the decision on the guilty verdict and if not, at least the penalty would have been reviewed. I uphold this ground.

Ground 3 – Irrelevant Considerations

24. This ground relates to denial of certain facts. The Plaintiffs were charged with the following charges:

a) Offensive Language and Behaviour - Category A 1) Student Rules
b) Nuisance and Disturbance - Category A 11) Student Rules
c) Possession of alcohol - Category B v1) Student Rules
d) Drunkenness and Disorderly - Category B v11) Student Rules
e) Consumption of alcohol - Appendix D Student Discipline Statute

25. The Plaintiffs denied using offensive language and behaviour and swearing at the Security Officers. The Plaintiffs denied drinking alcohol on campus. The Plaintiffs admitted they drank outside of the University Campus earlier during the day. The Plaintiffs admitted they had alcohol in their possession but denied behaving in disorderly manner. The Plaintiffs admit one of the Plaintiffs may have used offensive words but they were not specifically directed at the Security Officers. The Plaintiffs allege that these facts were presented to the University Student Disciplinary Committee (USDC) and the Students Appeals Committee but were not considered. The Plaintiffs therefore allege that the Defendants took into account irrelevant considerations and failed to take into account the submissions or evidence presented by the Plaintiffs.
    
26. In respect of the allegations of consumption of liquor, I find there is no direct evidence. The Defendants did not provide evidence at this hearing. The Court gave directions on 25th September 2020 to the Defendants to file their Affidavit evidence. It was expected that the Defendants were to produce the University Officers reports and record of the proceedings to the Court. In the absence of evidence to the contrary, I accept the Plaintiffs’ explanation that they did not consume alcohol at the campus. The Disciplinary Committee gave undue weight to the guilt of the Plaintiffs being in possession of alcohol as such that they were not prepared to consider the explanations offered by the Plaintiffs.
    
27. In respect of swearing, it is not clear from the evidence, who uttered the swearing words and whom were these words directed at. It is not safe for the USDC to charge the entire seven (7) students for the action of one student. In my view, the offence of offensive language is not a common utterance or pursuit by all the Plaintiffs. The Committee failed to ascertain the main culprit in the swearing incident on the face of the denials by the students. In respect of charges relating to nuisance and disturbance and disorderly behaviour I find there is no evidence against the Plaintiffs. In my view the Respondents could have found the Plaintiffs guilty only for the charges of being in possession of alcohol and being drunk. Instead the Respondents found the Plaintiffs guilty of the serious Zero Tolerance charge of Consumption of Alcohol and Drugs without any credible evidence.
    
28. In my view, the University Student Disciplinary Committee’s ‘guilty verdict’ is erroneous and unsafe. I consider this ground is made out.
    

Ground 4 – Errors of Law

29. The Plaintiffs allege the University Student Disciplinary Committee (USDC) made errors of law in their decision on two aspects: Firstly, they failed to follow procedure under Section 9 (d) of the Appendix A (Students Discipline Statutes) to the Students Rules. Secondly, the Plaintiffs allege the letter containing the charges did not specify the sections or provisions of the rule they breached.
    
30. The statement of charge issued to each of the Plaintiffs read as follows:
    

“Your action is also contrary to the STUDENT DISCIPLINARY STATUTE under Appendix A (Papua New Guinea University of Technology Act 1986) and the zero TOLERANCE POLICY under Appendix D (Amendment No.3 of 2009).”

31. The Appendix ‘A’ reads:
    

“BREACHES OF DISCIPLINE

(1) Without limiting the generality of the words “breach of discipline” any act or conduct of a student is a breach of discipline if:

1. It involves disobedient of a reasonable direction by a person in authority over a student.”
   

32. The Appendix D reads:
    

APPENDIX D

RULES BREACHED AS A CONSEQUENCE OF CONSUMPTION OF ALCHOHOL AND DRUG

Subject to the provisions relating to penalties in the existing rules, any student found to have breached the Zero Tolerance Policy on consumptions of Alcohol and Drug Abuse relating to Student conduct as a result of consumption of alcohol or prohibited drug(s) shall be guilty of offence.”

33. I also note, the Plaintiffs were also charged under Category A (1), A (ii), B (vi) and B(vii) of the Student Rules (Reprint 2020).
    
34. I agree with Counsel for the Plaintiffs that the charges were ambiguous. The Category ‘A’ and ‘B’ charges under Student Rules have specific offences spelt out, whereas the Appendix A and ‘D’ of the Student Discipline Statute have general applications. In each of the rules, there is no specific penalty provisions provided for each charge or offence. This makes it difficult for the Plaintiffs to plead to the charges, not knowing what penalties they were facing.
    
35. I note Rule 2 of the Student Rules provide two Categories of offences. Category A provides for minor offences, and Category ‘B’ provides for major offences. Rule3 of the Student Rules is a penalty provision providing penalties for both Category ‘A’ and ‘B’ offences. They prescribe penalties starting from reprimand to 3 (three) years suspension.
    
36. However, there is lack of clarity and inconsistency in the rules, the prescription of offences and the penalties ascribed to each provision. For example, if a student is a first-time offender in Category B, he can be fined K200.00. If the offence is repeated, he stands to be suspended for 4 semesters.
    
37. In this case, the Plaintiffs, assuming they have committed Category ‘B’ offence of consuming alcohol, as first-time offenders, they can be fined K200.00 under Rule 3, Category B penalty.
    
38. Inconsistent with the above scenario, under type 2 offence, the Plaintiffs can also be fined K500.00 for swearing while under the influence of alcohol. A further inconsistency in the rules is that the Plaintiffs can also find themselves suspended for 3 (three) years for consuming alcohol and swearing.
    
39. The ambiguity relating to the disciplinary charges is probably the reason why the University Student Disciplinary Committee chose to use different rules with alternative charges in their Statement of Charge dated 22^nd July 2020.This in turn, makes it even more difficult for a student, as in the present case, to plead to the charge.
    
40. I find this to be in breach of Section 37 (2) of the Constitution which provides for the right to protection of law where it states:
    

“2. Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law. ”

41. In the present case, the Plaintiffs did not appreciate the charges and the penalties that were to be imposed on them in the event of a guilty verdict. They were caught by surprise and the decision in my view is harsh and oppressive. A person charged with a disciplinary offence has be told in no uncertain terms what charge he is being charged with and the penalty to be imposed. For these reasons, I find this ground is made out.
    

Ground 5 – Wednesbury Principle of Unreasonableness.

42. In this ground the Plaintiffs allege the decision by University Student Disciplinary Committee is unreasonable in the circumstances. The Plaintiffs alleged they did not cause any nuisance or disturbance. They apologised to the Disciplinary Committee. They did not destroy any property or cause any commotion. They were first time offenders. They were in a group and it is not easy to determine the culpability of each Plaintiff.
    
43. I agree with counsel for the Plaintiffs. The University Student Disciplinary Committee failed to use its discretion. They took a rigid stand with no regard for treating each case on its merits. I also note they were not consistent with some of their earlier decisions. There is evidence of the Committee giving lenient penalties to three students early this year who committed similar offences. They are said to have been fined K500.00
    
44. If they have applied discretion in imposing lessor penalties in similar cases dealt with in the recent past, they could have done the same in the present case. This is not the worst type or category of cases.
    

Penalty

45. In respect of penalty, there is no evidence that the Plaintiffs were heard on penalty. From the Plaintiffs summary of the proceedings it shows after the hearing, the Disciplinary Committee met briefly for a few minutes and returned with guilty verdict and pronounced judgment on penalty as well. It is clear the Plaintiffs were not properly heard on penalty.
    
46. In their appeal to the Appeals Committee, the Plaintiffs made it clear that the decision of the USDC was harsh and oppressive. They requested the Appeals Committee to reverse the decision for the following reasons:
    
    1. they are first time offenders.
    2. they did not consume alcohol on campus.
    100. they apologised and have shown remorse.
    4. they are all final year students,
    5. the USDC has to be consistent in their decision in that they have cited three earlier decisions with students committing similar offences were given the penalty of K500.00 fine.
       
47. The Appeals Committee apparently did not consider their appeal favourably, especially why the Appeal Committee could not distinguish the Plaintiffs’ case from the previous students’ cases.
    
48. As I pointed out earlier there is ambiguity in applying the appropriate penalty. This open-handed manner of executing disciplinary process can be open to abuse. The Disciplinary Committee could have but did not impose a penalty less severe than the three years suspension. It is particularly suppressing for the students who have just a few months away from concluding their studies. There is evidence that a 3 (three) years suspension is far too long. The Plaintiffs submitted that the University has a culture of changing the curriculum every three years. Should the Plaintiffs be required to serve their term of suspension in full, it is likely to result in them starting all over again.
    
49. In my view, the decision to suspend 7 (seven) final year students for 3 (three) years is a decision no reasonable tribunal could have reached and is therefore unreasonable in the circumstances.
    

General Observations

50. The University is the premier learning institution of this nation. I appreciate the Zero Tolerance Policy. It is a mammoth task of managing a huge number of students on Campus. All students who attend the University must abide by its rules. This is the institution that trains our future leaders, in all spheres of life. It is expected by parents, the University community and the State that those few privileged who are chosen to attend this premier University are to display exemplary behaviour and to use their best efforts in pursuit of knowledge which is their primary duty. Any defiant behaviour is a challenge to the rule of law on Campus and the University administration and can result in the forfeiture of the opportunity for higher learning.
    
51. Having said this and to avoid similar ambiguity in the future, I would recommend to the University to simplify its Rules for Student Discipline. It is advisable to prescribe precise penalties immediately after each rule creating the offence.
    

Conclusion

52. In conclusion, I find the University Student Disciplinary Committee had good reasons to charge the students but failed to follow due process. They failed to provide the University Officers’ Report which formed the basis of the charge.
    
53. The Plaintiffs were not given the opportunity to understand the charges and the penalties prescribed for each offence in order for them to plead accurately.
    
54. As for penalty, it appears the Plaintiffs were not heard on the penalty. The penalty imposed appears to be harsh and oppressive and done in haste. The penalty of 3 years is harsh and oppressive in the circumstances especially where the following considerations were not taken into account:
    
    • (a) the Plaintiffs are first time offenders;
      
    • (b) the Plaintiffs are final year students;
      

(c) the Plaintiffs apologised and have shown remorse;

(d) the suspension is too long and is likely to affect the future career of the

Plaintiffs given the possible change in subject curriculum in three years

time;

(e) disparity and confusing alternative penalty provisions in the University

Rules;

(f) the need for consistency in the making of similar cases.

55. For these reasons, I find the Plaintiffs have successfully established grounds for review.
    
56. What orders should I make. A favourable finding on the grounds for review does not automatically entitle the Applicants to the orders they seek. The Court has a discretion and can refuse the relief on equitable grounds or make such other orders it deems fit to do justice in the circumstances. Refer: Mao Zeming v The State (2006) N2998 and Tau Kamahuta v Sode (2006) N3067.
    
57. Accordingly, and in the exercise of my discretion, I will firstly quash the decision of the University Students Disciplinary Committee made on 6^th August and confirmed in writing on 14^th August 2020. Whilst I set aside the Guilty Verdict for consumption of alcohol being the Appendix D offence under the Student Discipline Statute, I find the Plaintiffs had alcohol at the campus. The Plaintiffs have admitted to the charge of being in possession of alcohol. I will therefore return a guilty verdict against the Plaintiffs for that charge under Category B (vi) of the Student Rules which carry a lessor penalty. The appropriate penalty is K500.00 fine and I am inclined to impose a fine on each of the Plaintiffs.
    
58. If I am wrong in my decision on the verdict or conviction, the penalty imposed by the University Students Disciplinary Committee is still harsh and oppressive. For this reason, I will quash the penalty and instead impose a fine of K500.00 each.
    
59. In respect of Cost, I propose to order that cost to be borne by each party. The Plaintiffs have succeeded in part. Cost is a matter of discretion and in the exercise of my discretion, I make no order as to cost against any party.
    

ORDERS

60. The Orders of the Court are:
    
    1. The decision of the University Students Disciplinary Committee made on 6^th August 2020 finding the Plaintiffs guilty of consuming alcohol and suspending them from studies for a period of no less than three (3) years is hereby reviewed and quashed.
       
    2. The Plaintiffs are found guilty on the lesser charge of being in possession of alcohol at the University campus only.
       
    100. The Plaintiffs shall each pay a fine of K500.00.
         
    4. The parties shall pay their own cost.
       
    5. Time be abridged.
       

Simon Sengi Lawyers: Lawyers for the Plaintiffs

In-house Lawyers: Lawyers for the Defendants