Sinebare v Raminai [2021] PGNC 143; N8873 (10 June 2021)

N8873

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 64 OF 2021 (IECMS)

BETWEEN:
Dr MUSAWE SINEBARE, PhD, M.INFO TECH, M.ED as Vice Chancellor of the University of Goroka
First Plaintiff

AND:
PROFESSOR JOSEPH SUKWIANOMB AS CHANCELLOR AND CHAIRMAN OF THE COUNCIL OF THE UNIVERSITY OF GOROKA AND ON BEHALF OF THE COUNCIL MEMBERS DR. JULIENNE KUMAN, LAWRENCE TITIMUR, DR. ALFRED TIVINNARKLIK, MIRI SETAE, TAIES SANSAN, LESLIE HOFFMAN, STEVEN RERE, CHRISTOPHER ASA, GAYLE TATSI AND MARIA KOPKOP
Second Plaintiff

AND:
HON WESLEY RAMINAI MP, AS MINISTER FOR HIGHER EDUCATION, RESEARCH, SCIENCE & TECHNOLOGY
First Defendant

AND:
PROFESSOR FR JAN CZUBA AS SECRETARY FOR DEPARTMENT OF HIGHER EDUCATION SCIENCE AND TECHNOLOGY
Second Defendant

AND:
JOE WEMIN AS UNLAWFUL CHANCELLOR & CHAIRMAN OF THE UNLAWFUL INTERIM COUNCIL OF THE UNIVERSITY OF GOROKA
Third Defendant

AND:
DR. GORU HANE NOU, TAKALE TUNA, JOHNSON KENT WANI, NELSON AUWO, ROSE KOYOMA, JOHN SARI, STEEN NUKUITU, ROBIN GUEBIAN BAZZYNU, WAYNE JOSEPH, LAVERT GANINO AS UNLAWFUL INTERIM COUNCIL MEMBERS OF THE UNIVERSITY OF GOROKA
Fourth Defendant

AND:
DR. TENG WANINGA PHD, M.ED HON, B.ED AS UNLAWFUL ACTING VICE CHANCELLOR OF THE UNIVERSITY OF GOROKA
Fifth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2021: 18^th May, 10^th June

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) Leave Application for Judicial review – Sections 155 (4) Constitution – Suspension of Plaintiff Section 152 (3) (d) & (e) Higher Education (General Provisions) Act 2014 – Section 152 (3) (b) and (c) revocation appointment of second Plaintiff as council members – Delay – Locus Standie – arguable basis of – Exhaustion of Internal Processes – Materials relied insufficient – balance not discharged – Motion refused – Cost follow event.

Cases Cited:

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906

Mapson v National Executive Council [2019] PGSC 102; SC1880

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70

Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Counsel:

T. C. Waisi, for Plaintiff
K. Kipongi, for First & Sixth Defendant

RULING

10^th June, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons filed of the 12^th May 2021 seeking leave for judicial review. The Initial application for leave was sought and dismissed 11^th of May 2021 by this Court in OS (IESMS) (JR) 53 of 2021. Parties were principally the same, Professor Joseph Sukianomb as duly appointed Chancellor and Chairman of the Council of the University of Goroka and on behalf of Council Members Dr. Julian Kuman, Lawrence Titimur, Dr Alfred Tivinnarlik, Miri Setae, Ms. Tais Sansan, Leslie Hoffman, Steven Rere, Christopher Asa, Gayle Tatsi, Ms. Maria Kopkop as Plaintiffs v Honourable Wesley Raminai as Minister for Higher Education, Research, Science & Technology as First Defendant, Joe Wemin as Unlawful Chancellor and Chairman of the Interim Council of the University of Goroka, Second defendant, Dr. Goru Hane Nou, Takale Tuna, Johnson Kent Wani, Nelson Auwo, Rose Koyama, John Sari, Steven Nukuitu, Robin Guebianbazznu, Wayne Joesph, Lavert Ganino as Unlawful Council Members of the University of Goroka as Third defendants, and the Independent State of Papua New Guinea fourth defendant.
   
2. That proceeding was heard and dismissed by operation of Order 16 Rule 3 because leave was not pleaded as required; it was pleaded with substantial reliefs breaching the rules and so was determined and refused with Costs.
   
3. This is the same cause of action by the same parties as was in that other proceedings coming back on the same cause of action reigniting that a technicality denied the substance of the contention that they placed. What must be clear is that when a court has determined a matter on its merits as was the case in this cause of action initially, that Court is ceased of jurisdiction in the matter. It means for all intent and purposes it is not a new matter de novo and amounts to res judicata as in Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008). It has been determined by a court of competent jurisdiction on its own merits. And the same is pursued here because the plaintiffs have come now after the decision of this court. That amounts to abuse of the process and the court will protect its process from the same. A competent court of Jurisdiction has decided which must be protected.
   
4. It ought by hierarchy of the Courts gone on appeal on the refusal to grant leave to the Supreme Court not here again: Sampson v National Executive Council [2019] PGSC 102; SC1880 (26 November 2019). Leave was refused for judicial review because it was held that he had no locus Standi. He successfully appealed. That is not the case here. The same matter is brought into the same court to be reheard which is an abuse of process and must be dismissed.
   
5. It is related to the matter OS (IECMS) 65 of Dr TENG WANINGA, PhD, Med Hons, Bed in his capacity as Acting Vice Chancellor of the University of Goroka Plaintiff V Dr MUSAWE SINEBARE, PhD, Med, Bed in his Capacity as Former Vice Chancellor of the University of Goroka First Defendant And Professor JOSEPH SUKWIANOMB In his Capacity as the Former Chancellor of the University of Goroka Second Defendant heard and determined 11^th May 2021 by this Court in relation to interim restraint which was refused as there was no basis to grant. It was heard together with OS (IESMS) (JR) 53 of 202 because they were related matters arising from the same facts and circumstances.
   
6. It is clear therefore that this court is ceased of its jurisdiction in the matter and by Telikom PNG Limited (supra) would amount to abuse of process and must be dismissed on that basis.
   
7. Secondly, there is again no merit in the locus Standi of the applicant he is temporarily suspended by his own affidavit filed of the 12^th May 2021. His contract of employment lapses on the 23^rd June 2023. He has been suspended by the Minister pursuant to powers under section 152 (3) (d) & (e) of the Higher Education (General Provisions) Act 2014. And which has been amended by Higher Education (General Provisions) (Amendment) Act 2020 in that, “(3) The Minister may, in the best interest of the Institution referred to in Subsection (2) exercise one or more of the following powers;
   

(a) appoint an independent arbitrator to resolve the issue; or

(b) revoke or suspend the membership of the governing body; or

(c) appoint an interim governing body; or

(d) suspend the Chief Executive officer; or

(e) appoint an acting chief executive officer as the interim academic and administrative head of the Institution to exercise supervision and control over the affairs of the Institution.”

The legislation scheme has been maintained, there is really no deviation, or material change in the powers of the Minster. As in the former the present maintains the same giving the Minister his powers whether under the former or the latter. One is not different one from the other. Essentially the Minister maintains his powers and which powers he has lawfully exercised in the suspension of the applicant pending investigations by the terms of reference. That is a normal disciplinary process seen out in all spheres of the law.

8. Annexure “F” and “G” is the same National Gazette number G234 dated the 19^th April 2021, “Statutory Instrument Higher Education (General Provisions) Act 2014. Revocation and Appointment of Vice Chancellor of the University of Goroka. I, Hon. Wesley Ora Raminai, Minister for Higher Education, Research, Science and Technology and Sports, by virtue of the powers conferred by section 152 (3) (d) and (e) of the Higher Education (General Provisions) Act 2014, and all other powers enabling and in consultation with the Secretary for the Department of Higher Education, Research, Science & Technology hereby;
   
   • (1) Suspend the vice chancellor of the University of Goroka, Dr. Musawe Sinebare, PhD, Med, BEd; and
   • (2) Appoint Dr. Teng Waninga, PhD, MEd Hons, BEd as acting Vice Chancellor.
     

With effect on and from the date of publication of this instrument in the National Gazette until the terms of Reference (TOR) of the Interim Council of the University of Goroka is complete and a permanent appointment is made.

Dated this 30^th day of March 2021. Signed by Hon W. O. Raminai MP

Minister for Higher Education, Research, Science and Technology and Sports.”

9. This is clear language of the beginning of the internal process with the Department of Higher Education, Research, Science and Technology and Sports instituted by its Minister. Pertaining to the chief executive officer the first plaintiff, and the interim governing council chaired by the Chancellor. It means pending completion of that internal process; the applicant is suspended in the interim, and will stay so, until completion of that process. He is therefore not properly before the court as he does not have standing or locus standi. He is not affected by that internal process which has just begun. He would be running early to the court without the completion and settlement of that process which is for all intent and purposes not judicial review. And therefore, is improperly before the court. It is a ground that is reinstated time and again, including an arguable basis of the case.
   
10. In similar manner the affidavit of Professor Joseph Sukwianomb of the 11^th May 2021 filed 12^th May 2021 sets out by annexure “JS1” the National Gazette G603 dated the 22^nd September 2015. It is also made under the provisions of the Higher Education (General Provisions) Act 2014 lists the appointment as members of the “University of Goroka Interim Council and shall remain in force until either a permanent council is appointed, a member’s appointment is revoked sooner for any disciplinary reason or resigns voluntarily;” The language is clear it is interim not permanent. It is confirmed by the revocation by National Gazette G 231 dated the 19^th April 2021 issued by the Minister revoking all appointments of the interim Council of the university annexure “JS15” of the affidavit of Professor Joseph Sukwianomb. Both are not in isolation because they emanate from the same facts and circumstances and no doubt is the subject of internal process that have begun. It is therefore premature to run to court without laying that to rest.
    
11. In this regard Professor Joseph Sukwianomb like first plaintiff both do not have locus Standi to bring this action for leave. And the material filed by both do not demonstrate any arguable basis to bring this cause of action to fulfil that leave be accorded. As it is the internal administrative processes and procedure instituted by law in this case Higher Education (General Provisions) Act 2014 now amended by Higher Education (General Provisions) (Amendment) Act 2020 are there for very good administrative reasons. They ought to be allowed liberty to completion to serve the purpose enacted initially and be not tampered or barred by actions in court. Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
    
12. It is clear by NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 that the discretion of the court does not lie here given these facts. There is no merit to grant as applied.
    
13. Cost is discretionary what is set out above clearly portray that the defendants were unnecessarily drawn into court. It must come to a stage where it cannot be condoned by simple order of costs follow the event. Here the facts warrant that stern action be taken against blameworthy conduct: Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010) the Supreme Court stated that:

“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

14. The facts set out above show a piece meal approach in the way the many actions were instituted by the plaintiff. Rights flow but must be pursued with a sense of justice and fairness to the other side and to the court. Convoluted and congested actions must be avoided, but there ought to be a sense of balance drawn so that equity meets equity not without. Finality in litigation must be envisaged and pursued not in pockets or piecemeal to finally drive here. A man who must be charged with break enter and stealing ought to be charged as such and not done piecemeal, firstly with being unlawfully on premises, then with wilful damage and stealing. It does not serve justice. The road to justice is with fairness and equity not without. There was no urgency to move as was done here settled by the facts set out above. It was in the plaintiff’s favour that leave was granted rather than wait that process and see the hearing of the review he put the defendants to tasks by bringing their attendance here including court time. Appreciating what the law was on in like proceedings. Is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. Or is this a case where there is blameworthiness and therefore indemnity follows in costs. Given all set out above this is a case for indemnity of cost to follow the event. Costs will therefore be on indemnity basis to follow the event.
    
15. The formal orders of the Court are:
    
    • (i) The originating summons of the applicants are without merit.
    • (ii) They are/ denied in its entirety and dismissed.
    • (iii) Costs will follow the event forthwith on an indemnity basis against the plaintiffs.
      

Orders Accordingly.

__________________________________________________________________

Waisi Lawyers: Lawyer for the Plaintiff /Applicant

Office of the Solicitor General: Lawyer for First & Sixth Defendant