Czuba v Raminai [2021] PGNC 306; N9084 (8 July 2021)

N9084

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 69 OF 2021 (IECMS)

BETWEEN:
PROFESSOR FR. JAN CZUBA
Plaintiff

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

AND:
HON. JOE SUNGI MINISTER FOR PUBLIC SERVICE
Second Defendant

AND:
APEO SIONE CHAIRMAN PUBLIC SERVICE COMMISSION
Third Defendant

AND:
PUBLIC SERVICES COMMISSION
Fourth Defendant

AND:
HON. JAMES MARAPE PRIME MINISTER & CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL
Fifth Defendant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Sixth Defendant

AND:
DR. FRANCIS HUALUPMOMI ACTING SECRETARY FOR THE DEPARTMENT OF HIGHER EDUCATION, RESEARCH, SCIENCE & TECHNOLOGY
Seventh Defendant

AND:
DR ERIC KWA IN HIS CAPACITY AS THE ATTORNEY GENERAL AS REPRESENTATIVE OF THE HEAD OF STATE
Eighth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani: Miviri J
2021: 18^th May, 8^th July

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) Leave Application for Judicial review – Suspension of Applicant pending investigations – Disciplinary process beginning – Internal Process not exhausted – No delay – No Locus Standi – No arguable basis of – balance not discharged – Leave refused – Cost follow event.

Cases Cited:

Temai v Marape [2021] PGNC 83; N8825

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

Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892

Damem v Maipakai [2004] PNGLR 41

Kambanei v National Executive Council [2006] PGNC 7; N3064
Counsel:

D. Kamen, for the Plaintiff
K. Kipongi, for the Defendants

RULING

08^th July, 2021

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons filed of the 21^st January 2021 seeking leave for judicial review.
   
2. In his statement in support filed of the 31^st May 2021, on the 26^th March 2021 he was served a seven days show cause notice by the first defendant as to why he should not step aside from the office of the Secretary. There were allegations that were brought against him which needed to be cleared. And he was given an opportunity to volunteer in the face so as to allow that process without a formal suspension. Because the allegations detailed of official corruption and abuse of office. And copies of it were given to the Prime Minister, Minister for Public Service, and the Secretary of DPM. These are annexures “A” and “B” of Honourable Wesley Raminai’s affidavit filed of the 28^th May 2021. This are also annexures “JC6” of the affidavit of Fr Jan Czuba’s affidavit filed of the 21^st May 2021.
   
3. He responded to it on the 29^th March 2021 in which he highlighted irregularities and false information which consisted and were contained in it. He specifically pointed out that there was no clause in his contract of employment, clearly stipulating the disciplinary process to be adhered to have him suspended, or terminated and therefore the First Defendant’ s request to have him step aside was ultra-Vires his powers. This is annexure “JC7” of his affidavit.
   
4. On the 06^th April 2021, he received yet another letter from the First Defendant requesting him to step aside voluntarily within 24 hours, or the First Defendant would consider taking the matter to the National Executive Council to suspend him from office. On the 07^th April 2021 He responded to the First Defendant in which He stated that the principles of Natural Justice and right to be heard were not accorded to him, and that he will not step aside. These are annexures “JC8”and “JC9” of his affidavit.
   
5. On the 16^th April 2021, the Minister for Public Service wrote to the Minister for Department of Higher Education Research Science Technology (DHERST), advising amongst others referral of the allegations against him to PSC for preliminary investigations, and by a letter of even date referred the matter to PSC annexure “E” and “F” of the affidavit of Honourable Wesley Raminai.
   
6. On the 22^nd April 2021, the PSC wrote to the Public Service Minister on the serious allegations against the plaintiff and recommended immediate suspension of him, pending criminal proceedings and other administrative steps against him, annexure “D” of the affidavit of Honourable Wesley Raminai.
   
7. On the 03^rd May 2021 the Minister for Public Service made a NEC submission through Statutory Business Paper No.38 of 2021. On the 12^th May 2021, the NEC deliberated on the submission and suspended the plaintiff and appointed the seventh defendant as Acting Secretary for DHERST for three (3) months only. And it was published in the National Gazette in Gazettal number G316 of 2021. And on the 20^th May 2021 the said Gazettal notice No. G 316 of 2021 was served on the plaintiff by the First Secretary for the First defendant, Annexure “A”, “B” and “D” of the affidavit of Honourable Wesley Raminai.
   
8. Annexure “A” is in the following terms; “National Gazette published by Authority. No. G316 Port Moresby Tuesday 18^th May 2021. Constitution. Public Services ( Management) Act 1995. Suspension of appointment and Appointment of Acting Secretary of Department of Higher Education, Research, Science and Technology.
   
9. I Grand Chief Sir Bob Dadae, GCL, GCMG, K. St J., Governor General, by virtue of the powers conferred by section 193 (1B) of the Constitution and Sections 31B and 31D of the Public Services (Management) Act 1995, and all other powers enabling, acting with, and in accordance with, the advice of the National Executive Council, in the recommendation of the Public Services Commission, hereby- (a) suspends the appointment of Fr. Jan Czuba as Secretary of the Department of Higher Education, Research, Science and Technology; and (b) appoint Dr Francis Hualupmomi as Acting Secretary of the Department of Higher Education, Research, Science and Technology, for a period of three (3) months, or until the conclusion of the investigation, whichever occurs first. With effect on and from the date of publication of this instrument in the National Gazette. Dated this Tuesday, 18^th May 2021. Sir Bob Dadae Governor-General.”
   
10. On the 19^th May 2021, the Secretary for DPM wrote to him on the decision of the National Executive Council (NEC) to suspend him. In it the DPM Secretary explained and informed him of the consultative process which involved the Minister for Public Service, the Public Services Commission (PSC) and the DPM leading to the NEC decision annexure “JC11” of his affidavit.
    
11. In my considered view, this is clear evidence and language of the beginning of the internal process with the Department of Higher Education, Research, Science and Technology and Sports instituted by its Minister, that has led to all relevant agencies of Government who have played their individual parts necessary by law to give effect to the ultimate, of the suspension of the plaintiff for three months. 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: Temai v Marape [2021] PGNC 83; N8825 (20 May 2021). Here there are various offices including that of the Public Services Minister, the Prime Minister, the Secretary of DPM, it is therefore a considered approach with respect to the office that the Plaintiff held and of the fact that he was a learned person, a professor, and a Priest of the Catholic Church. It is clear in the way the Minister sets out to act in the first place. There is no immediate suspension but a mutual ask for him to volunteer. And there are steps that emanate after leading to the eventual suspension. It is an open transparent process and there is no inuendo or ulterior motive by the evidence set out above, except to exhume the truth where it lies.
    
12. 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). There is really no arguable basis to maintain this action, nor is the plaintiff with the necessary locus standi to hold forth this action. He is not affected until the final determination of that process internally. He is still there but has been suspended for three months with all that the position offers in his hands. He will be affected and would have the locus Standi when the final decision in that process comes out. The gazettal is clear it is three (3) months in the making until final determination which would give him the standing and the leverage to come into Court. Because internal process has now being exhausted fulfilling that requirement to open the door to judicial review. As it is the internal process has not been exhausted, it has just begun and therefore he is not properly in court. He will abide by the internal process. This ground fails because there is no merit to maintain it given.
    
13. Inclusive he does not have the arguable basis to be in court for leave prima facie and that 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 pursue in his favour as he has contended. He is a busy body because judicial review is confined to examining the process to the decision. It is not that he has been suspended which is part of that process but the entire process has not been completed: Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4892 (6 December 2012). He does not qualify that leave be accorded here.
    
14. And pleading on the basis of Damem v Maipakai [2004] PNGLR 41 cannot give light to his cause because here is very clear evidence of the process leading to his suspension. He is not suspended without merit the evidence leading foretells that suspension is in order. There is no ulterior motive except compliance to the letter leading, the gazettal is clear and within the terms of the Constitution section 193(1B) of the Constitution and Sections 31B and 31D of the Public Services (Management) Act 1995. Therefore, it cannot be likened to the facts in that case for it to give leeway for the cause of the plaintiff. Reliance on it strengthens the cause here that all has been accorded in law to lead to the suspension, and it stands to continue the next process to determination of the process. It therefore will not be circumvented on the basis of this decision. The facts relied, the circumstances posed are not likened, and that case has no application here given.
    
15. And in similar vein is that of Kambanei v National Executive Council [2006] PGNC 7; N3064 (10 April 2006) reliance on both cases do not entail with the facts here to define error in the disciplinary process. Here what it is pertinent cogent and apparent is that a process of law in discipline of a departmental head has begun, with the incumbent in the chair but suspended until due determination. The first step has been taken it must in all respect be allowed to run its course after which recourse is now open in judicial review court for the plaintiff. Section 31D of the Public Services (Management) Act 1995 has been fulfilled to the brim here given all set out above. There is no room to contend that it has not being given its full effect so that the facts and circumstances in Damem (supra) and Kambanei (supra) are applicable. The aggregate totality is that there is no equity to meet equity here until the process has come its full course. The proceedings against have no merit in all respects and cannot sustain the cause. It will be dismissed in its entirety forthwith with Costs to follow the event.
    
16. In passing this is a case where a highly learned person holding the title of Professor a Secretary of a Department and a Catholic Priest who ought to know what due process in law and equity is, which derives from Canon Law, and in that regard would have been humbled to allow completion before running the trot here. Christ did not accuse his accusers, nor did he retaliate to them with a sword, because HE said to Peter those who live by it die by it.
    
17. The formal orders of the Court are:
    
    • (i) Leave is refused for judicial review.
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Kamen Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for First, Second, Fifth, Sixth, Eight & Ninth Defendants