Molu v Bando [2021] PGNC 299; N8996 (4 August 2021)

N8996

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 634 OF 2019

BETWEEN:
SAMSON MOLU
Plaintiff

AND:
WILLIAM BANDO IN HIS CAPACITY AS PROVINCIAL ADMINISTRATOR FOR HELA PROVINCIAL ADMINISTRATION
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 04^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Leave application – Order 16 Rule 3 (1) NCR – Standing – No delay – Exhaustion of Internal Processes – Arguable case – Balance discharged – Leave granted for JR – cost follow event.

Cases Cited:

NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Counsel:

J. Napu, for Plaintiff
E. Bua, for Defendant

RULING

04^th August, 2021

1. MIVIRI, J: This is the ruling on the originating summons dated the 13^th September 2019 pleading for; - 1. Leave to be granted for an order for mandamus compelling the first defendant to implement the decision of the Public Services Commission dated the 29^th November 2017 to reinstate the Plaintiff to his substantive position No. HPAHR 003 Designation Training officer grade 12 at the Provincial Administration Hela Province and to have all his entitlements paid out retrospective to the date effected.
   
2. His proceedings are in order by the instituting documents including the originating summons set out above, the Statement pursuant to order 16 Rule 3 (2) (a) of the Rules. Notice to the Secretary for Justice to apply for judicial review of the 13^th September 2019, affidavit verifying the facts that he relies on instituting, and his own affidavit also of the 13^th September 2019. All were served proofed by the affidavit of one Kylie Napu dated the 19^th September 2019.
   
3. What is clear from this evidence is that he is aged 42 years old from Mendi Southern Highlands. He was employed as Training Officer Hela Province until his dismissal from the Public Service by the termination of his contract on the 26^th October 2016. He was never suspended nor was he charged with any disciplinary charges before his termination. But he applied successfully for review to the Public Services Commission who returned a decision in his favour on the 29^th November 2017. He was reinstated to his substantive position set out above with all entitlements and emoluments to be paid retrospective to the date of his demise. That was to be binding after lapse of 30 days if no challenge was made to it by the Hela Provincial administration. And prima facie that is the position now as that decision has not been challenged, it must be implemented.
   
4. Allegedly he was terminated over allegation of a major payroll scam and so suffered derogatory over the criminal allegation made. He suffered loss of his repute and standing including career development and prospect. He could not secure any employment stemming.
   
5. He was terminated by the defendants on the 26^th October 2016 and the decision of the Public Services Commission was on the 29^th November 2017. It had to be implemented by or before the expiration of 30 days as section 18 (6) (b) of the Public Services Management Act was specific, that if the decision was not implemented within 30 days, it became binding and had the force of law. That decision was never implemented hence this proceeding seeking implementation by Mandamus.
   
6. There is no doubt he is affected by the actions of the defendants and therefore has locus standi. He satisfies this ground and is accorded because he was terminated without any charges and a right to be heard on the same. In itself it is an arguable basis because the right to be heard is within the Constitution section 59. He was never charged with the allegation giving rise, nor was he suspended as a result and pertaining. He was never accorded opportunity to be heard in his own defence before being terminated of contract. That is clear from his affidavit sworn of the 12^th September 2019, filed the 13^th September 2019. Annexure “I” of which is the PSC decision on the finding in favour of the applicant plaintiff restoring him to his position with all entitlements relating and retrospective. That is the decision of a Constitutional Office which holds the actions of the defendants as breaching laws in the termination of the applicant. Natural Justice has not been accorded to the plaintiff and he is restored to his substantive position before the termination with all entitlements relating retrospectively to be paid.
   
7. To my mind that is lawful and arguable as it stands in favour of the plaintiff. He has not delayed in bringing this allegation filing it on the 13^th September 2019. Given all set out above the reasons that Justice would be denied if time is made prime. Because on a quick perusal he has an arguable case, NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70.
   
8. The decision of the public Service Commission is proof that internal process and procedure has been exhausted. He is therefore properly before the Court and this ground is made out in his favour. It would not be prejudice to the defendants as the decision by the Public Services Commission high lights the inadequacy of compliance with the law in the termination. There is prima facie strong evidence in favour of the applicant and falls square with Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797(28 October 2005) and in similar the applicant has made out a case for grant of leave because that is what Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014) fulfills and therefore all requirements are discharged on the balance of preponderance for leave to be accorded to the plaintiff for review of his termination.
   
9. In this regard the matter is adjourned to the next directions date of this court of Monday the 16^th August 2021 at 9.30 for directions to ascertain the position in respect of the parties to finalize the substantive matter pleaded for.
   
10. The formal orders of the court are:
    
    • (1) Leave is granted for judicial review for mandamus.
    • (2) The matter will be called Monday 16^th August 2021 at 9.30am at directions.
    • (3) Costs in those proceedings will follow the event.

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant