Lenturut v Akipe [2022] PGNC 45; N9428 (3 February 2022)

N9428

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 67 OF 2020 [IECMS]

DORIS LENTURUT
Plaintiff

V
JOHN AKIPE AS SECRETARY FOR DEPARTMENT OF DEFENCE
First Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2022: 2^nd & 3^rd February

PRACTICE & PROCEDURE – Judicial Review & appeals – Mandamus Substantive Notice of Motion for – Order 16 Rule 5 (1) NCR – PSC Decision Section 18 (6) (b) Binding Effect PSM Act 2014 Amended – Affidavit in Support Plaintiff Applicant – Merit in Application – Materials Sufficient –Mandamus Granted – cost indemnity basis follow event.

Cases Cited:

Meauri v Kereme [2021] PGNC 192; N8906

Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251

Nuli v Manigut [1984] PNGLR 55

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

National Narcotics Bureau v Nauro [2016] PGSC 31; SC1513

Vakinap v Kambanei [2004] PGNC 264; N3094

Atlas Corporation Ltd v Ngangan [2020] PGSC 86; SC1995

Panie v Daton [2021] PGNC 320; N9060

Port Moresby City Council v Sheriff of PNG [1981] PNGLR 477

Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870
Counsel:

L. Tangue, for Plaintiff
H. Wangi, for Defendant

DECISION

03^rd February, 2022

1. MIVIRI, J: This is the ruling on the Plaintiff’s substantive Notice of Motion filed the 1^st July 2021 pleading for; firstly, an order in the nature of Declaration that the failure, refusal, and or decision of the First Defendant not to implement the Public Services Commission decision of the 30^th November 2017 to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence and to have all her entitlements paid out if any is illegal, null and void, and of no effect.
   
2. Secondly an order in the nature of a writ of mandamus issued against the First Defendant to compel him to implement the decision of the Public Services Commission of the 30^th November 2017 to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence and to have all her entitlements paid out if any.
   
3. To substantiate her cause the Plaintiff relies on her own affidavit firstly of the 28^th October 2020, filed on the 30th October 2020, secondly of the 31^st August 2021 filed of the 02^nd September 2021, and thirdly sworn and filed of the 20^th September 2021.
   
4. The combined effect of this evidence establishes that she was employed with that Department as its First Assistant Secretary Corporate Services at grade 18 prior to her termination on the 25^th January 2017 at the hands of Mr. Vali ASI then Secretary for the Department of Defence. Whose reason for so acting was that she co-authored a complaint letter to the Secretary for Department of Personal Management with others whose cases met similar fate before this Court. She appealed from that decision to the Public Services Commission on or around the 02^nd March 2017. It upheld her appeal ordering her reinstatement to her position forthwith. Which was communicated to the defendant’s predecessor on the 13^th December 2017. He refused to implement that decision after the decision was outstanding to be so implemented after the expiry of 30 days. He instituted proceedings OS (JR) 288 of 2018 Trevor Meauri v Dr Philip Kereme, Public Services Commission & Doris Lenturut seeking review and to quash the PSC decision dated 30^th November 2017 amongst other reliefs. That proceeding was dismissed following interparty hearings in favour of the plaintiff. Plaintiff pursued the defendants to reinstate her in accordance with the decision of the PSC to no avail hence this proceeding for mandamus to compel implementation of that decision by the defendants. Leave of which was obtained before this Court on the 25^th June 2021.
   
5. In its defence of the matter the State has not filed any material to counter that which was filed by the Plaintiff. On the eve of trial, The State Counsel did not have the file ready because it was with the Solicitor General. The Court accorded adjournment to 1.30pm to allow retrieval of the file and for counsel to assist the court in the trial of the matter. On the return the State did not have any material relied to advance its case but conceded the evidence that was led by the Plaintiff. And the fact that the Public Services Commission had decided in her favour reinstating her, which was unsuccessfully challenged by the defendants. No appeal emanated from that decision so it remained for that decision to be implemented. Hence this application.
   
6. Which has been coupled with the fact that this was a related proceeding to OS (JR) 220 of 2018 reinstating the third defendant there, Carmel Tamileoni as Deputy Secretary Department of Defence; OS (JR) 181 of 2018 the third defendant Mary Chilli who held the position of Assistant Secretary, Human Resources Management, grade 16 Position No; DHRM 008, OS (JR) 220 of 2018. In proceeding OS (JR) 178 of 2018 the third defendant there Anna Lapu who held the position as Principal Staff Development & Training Officer grade 14, Position No: 011 with the department of Defence. And OS (JR) 177 of 2018 the third defendant there Mamel Wingu who held the position as Manager Civil Staff and Salaries, grade 14, Position No: DHRM 008 with the Human Resources Division of the Department of Defence. They were part and partial of the same circumstances allegation that also saw the demise of the applicant as did they there. It begs that the same be accorded as was their case: Meauri v Kereme [2021] PGNC 192; N8906 (25 June 2021).
   
7. This argument has not been refuted by any material advanced to the contrary by the State defendants. There is nothing to deviate nor accord differently than what was accorded there in each case. It is not apparent or identifiable that this applicant be treated differently considering all the material before me. And so, it would not be erroneous in law to accord the same decision in this case. And this is not an exception as demonstrated in other areas of civil law, even in the determination of damages allowed: Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251. Comparable like cases must be treated alike even in criminal law, Nuli v Manigut [1984] PNGLR 55.
   
8. And in this area of the law given the facts and circumstances here the present case is likened to Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797(28 October 2005) where there is deliberate defiance in the face of what is glaring in law against the defendants. And as in that case there is no material to deter like treatment in law to be accorded given the facts circumstances here. Challenge was made here to set aside the decision of the PSC which has been confirmed, opportunity was accorded the defendants from which no further review was sought in the Supreme Court: National Narcotics Bureau v Nauro [2016] PGSC 31; SC1513 (15 July 2016). Hence that decision stands in law mandamus would lie given the facts and the circumstances.
   
9. It would not be out of context given Vakinap v Kambanei [2004] PGNC 264; N3094 (29 November 2004) which drew similar. Consequently, the motion is accorded Judicial review for mandamus to lie against the defendants compelling the first defendant to implement the decision of the Public Services Commission contained in letter dated the 30^th November 2017, to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence, and to have all her entitlements paid out if any. It would not be out of the context seen by this court there; I adopt the reasoning there and follow likewise here given the facts similar and the relevant law sustaining the application of the plaintiff in her favour. This is not a case where it was observed as in Atlas Corporation Ltd v Ngangan [ 2020] PGSC 86; SC1995 (13 March 2020), mandamus was not appropriate given. Nor is it as observed in Panie v Daton [2021] PGNC 320; N9060 (11 August 2021), there is clear evidence or defiance of the decision of the PSC which is binding by section 18 (6) (b) PSM Act 2014 Amended. It must be implemented and given effect to. Nothing to the contrary has been placed by the State defendants, accordingly the balance has been discharged by the plaintiff in the motion prayed: Port Moresby City Council v Sheriff of PNG [1981] PNGLR 477.
   
10. Her motion will be granted in full as applied because there is no prejudice she is still being paid on that salary. She is living in the institutional house allocated and primarily the subject position has not been filled. It will not prejudice to implement the decision of the PSC given. And accordingly, that decision is now to be implemented as Mandamus lies given. The application by the motion is granted in full as prayed.
    
11. Cost is a discretionary matter and will be drawn out by the facts and circumstances of a particular case. It is no different here given. This is an action that was unnecessary and not warranted in law and facts. It simply should have ended after the review was refused. The plaintiff accorded reinstatement to the position as determined by the PSC with all due therefrom. What has happened here has unnecessarily abused the process to bring the Plaintiff to incur time money and logistics when the position in law was explicit and clear. Judicial time has been pulled into court unnecessarily given. Justice has been unnecessarily prolonged and denied the plaintiff. It will follow that costs will be on an indemnity basis following Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870 (29 October 2019).
    
12. The formal orders of the court are:
    
    • (1) Declaration is granted that the failure, refusal, and or decision of the First Defendant not to implement the Public Services Commission decision of the 30^th November 2017, to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence, and to have all her entitlements paid out if any is illegal, null and void, and of no effect.
      
    • (2) Mandamus lies against the First Defendant forthwith to implement the decision of the Public Services Commission of the 30^th November 2017 to reinstate the Plaintiff to her substantive position of First Assistant Secretary Corporate Services Grade 18 at the Department of Defence and to have all her entitlements paid out if any.
      
    • (3) Costs are on an indemnity basis to follow the event.

Orders Accordingly.

__________________________________________________________________

Tangue Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants