Evangelical Lutheran Church of Papua New Guinea v Hendingao [2023] PGNC 333; N10496 (22 September 2023)

N10496

PAPUA NEW GUINEA
[IN NATIONAL COURT OF JUSTICE]

OS NO. 94 OF 2023

BETWEEN:
EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
First Plaintiff

AND:
LUTHERAN UNIVERSITY OF PAPUA NEW GUINEA
Second Plaintiff

AND:
JERRY HENDINGAO, AS SUSPENDED PRINCIPAL OF BALOB TEACHERS COLLEGE
First Defendant

AND:
JACK HAWAP, AS SUSPENDED DEPUTY PRINCIPAL – ADMINISTRATION OF BALOB TEACHERS COLLEGE
Second Defendant

AND:
BOB AARON, AS FORMER BOARD CHAIRMAN OF BALOB TEACHERS COLLEGE
Third Defendant

Lae: Dowa J
2023: 6^th July & 22^nd September

CIVIL jurisdiction-Plaintiffs seek permanent restraining orders against defendants from holding themselves out as principal, deputy principal and Board chairman of Balob Teachers College-discussions on status of the second Plaintiff as a University and whether the second Plaintiff has authority over staff matters at Balob Teachers College-application refused as BTC still remains with Department of Higher Education, Research, Science and Technology pending amalgamation.

Cases Cited:

Robinson v Airlines Corp (1983) PNGLR 476
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144

Counsel:

S. Gor, for the Plaintiffs
J Simbala, for the Defendants

JUDGMENT

1. DOWA J: This is a ruling on the Plaintiffs application for permanent restraining orders against the Defendants.
   
2. By Originating Summons filed 28 April 2023 the Plaintiffs apply for permanent restraining orders to restrain the Defendants and their agents, associates, and servants from:
   
   • (i) As against the First Defendant:
     
     • (a) Claiming to be and holding himself out as the Principal of Balob Teachers College; and
       
     • (b) Performing the duties of the Principal of Balob Teachers College which includes but are not limited to, calling meetings, accessing the offices of Balob Teachers College, attending to and conducting staff meetings and interfering with the operations of Balob Teachers College.
       
   • (ii) As against the Second Defendant:
     
     • (a) Claiming to be and holding himself out as the Deputy Principal Administration of Balob Teachers College; and
       
     • (b) Performing the duties of the Deputy Principal Administration of Balob Teachers College which includes but are not limited to, calling meetings, accessing the offices of Balob Teachers College, attending to and conducting staff meetings and interfering with the operations of Balob Teachers College.
       
   • (iii) As against the Third Defendant:
     
     • (a) Claiming to be and holding himself out as the Board Chairman of Balob Teachers College; and
       
     • (b) Performing the duties of the Board Chairman of Balob Teachers College which includes but are not limited to, calling meetings, accessing the offices of Balob Teachers College, attending to and conducting staff meetings and interfering with the operations of Balob Teachers College.
       

Plaintiffs’ Claim

3. The Plaintiffs rely on the following Affidavits in support of the application:
   
   • (i) Affidavit of Bernard Kaisom sworn and filed 28 April 2023 [Exhibit P1];
     
   • (ii) Affidavit of Dr Eric Kwa sworn and filed 28 April 2023 [Exhibit P2];
     
   • (iii) Affidavit of Dr Miok Komolong sworn and filed 28 April 2023 [Exhibit P3].
     
4. This is the summary of the Plaintiffs claim. The First Plaintiff is a Church and a corporation established under an Act of Parliament called the Evangelical Lutheran Church of Papua New Guinea Act 1991 (ELC PNG Act). The Second Plaintiff is a body corporate, and a private university established by an Act of Parliament called the Lutheran University of Papua New Guinea Act 2022 (LUPNG Act) to be run by the first Plaintiff. The LUPNG was established on 31 March 2022, after the Department of Higher Education, Research, Science and Technology (DHERST) issued a Licence/Certificate to the ELC-PNG to establish the LUPNG. The Plaintiffs allege the Licence to establish the LUPNG was authorized under Section 119 of the Higher Education (General Provisions) Act 2014.
   
5. The Plaintiffs argue that the DHERST has approved the LUPNG to take over the current higher learning institutions, Balop Teachers College, Lutheran School of Nursing and Martin Luther Seminary to form part of the LUPNG.
   
6. In May 2022, the ELC-PNG Church Council appointed an Interim Council of the LUPNG and dissolved the three (3) Boards of the three (3) colleges of LSON, BTC and MLS. To transition the three (3) colleges into LUPNG, the Interim Council appointed an Acting Vice Chancellor, an Acting Bursar, and a small administrative staff to assist the Interim Council and the three (3) administrations for the amalgamation process.
   
7. In November 2022, the ELC-PNG Church Council formally appointed the Council of LUPNG in accordance with the provisions of the LUPNG Act and tasked the Council to fully establish the LUPNG. With the endorsement of the DHERST and ELC-PNG the Council held several meetings with the three (3) colleges and took several major decisions to progress the establishment of the LUPNG.
   
8. In its meeting of December 2022, the Council was informed that there were serious allegations of corruption and maladministration against the Principal of BTC, Mr. Jerry Hendingao the First Defendant herein and the Principal of LSON, Sister Stella Agat. At the direction of the Council, the two principals were charged with serious disciplinary offences. The two Principals responded to the allegations. In considering the responses and report from an Investigation Committee, the Council considered the charges sustained and removed them from their positions as Principals of the respective Colleges. The Council also demoted the second Defendant from his post as Deputy Principal of BTC. Other officers were appointed by the Council to act in those positions left vacant.
   
9. Meanwhile, the Plaintiffs allege, the first and second Defendants rejected the decision of the Council and forcefully remain at the helm of the BTC Administration. They have unlawfully orchestrated the appointment of Mr. Bob Aaron, the Third Defendant, as the Chairman of the Board of Governors of BTC amongst other disturbances caused to the College. The Plaintiffs allege the actions of Mr. Hendingao, Mr. Hawap and Mr. Aaron are unlawful and are a real threat to the smooth transition and establishment of LUPNG. The Plaintiffs therefore seek permanent restraining orders in the Originating Summons.
   

Defendants’ Response

10. The Defendants oppose the application and rely on their respective Affidavits:
    
    • (i) Affidavit of Bob Aaron sworn and filed 3 May 2023 [Exhibit D1];
      
    • (ii) Affidavit of Jack Hawap sworn 4 May 2023 and filed 5 May 2023 [Exhibit D2]; and
      
    • (iii) Affidavit in Support of Jerry Hendingao sworn 4 May 2023 and filed 5 May 2023 [Exhibit D3].
      
11. The first Defendant deposes he is the incumbent Principal of Balop Teachers College (BTC) appointed by the Department of Higher Education, Research Science and Technology (DHERST). He deposes that Balop Teachers College is still under the Department of Higher Education, Research, Science and Technology. He deposes further that the DHERST is the only authorized Appointing Authority who has the power to issue disciplinary actions and not the second Plaintiff. He produces correspondence from Professor, Fr. Jan Czuba, the Secretary for DHERST in support and confirmation of the position taken by him until the College is fully amalgamated with the second Plaintiff, LUPNG. The first Defendant deposes that the suspensions and demotions issued by the second Plaintiff are unlawful. The Defendant maintains that the Vice Chancellor of LUPNG does not have the power and authority to appoint, suspend or terminate them from their respective positions as Principal, Deputy Principal and Board Chairman of BTC.
    
12. Jack Hawap, the second Defendant and Deputy Principal of BTC, and Bob Aaron, the third Defendant and Chairman of the Governing Council of BTC, have both deposed identical facts in their respective Affidavits to that of the first Defendant. The Defendants assert as per the letter dated 1 April 2023 from the Secretary for DHERST, Professor Fr. Jan Czuba, that the appointing authority is DHERST and thus, the decisions of the Vice Chancellor of LUPNG are invalid. They continue to maintain that the First Defendant remains the Principal, the Second Defendant, the Deputy Principal, and the Third Defendant, the Board Chairman of BTC.
    
13. The Defendants have also raised the issue of standing, alleging LUPNG is an unregistered entity and thus has no locus standi to institute the proceedings.
    

Issues

14. The positions taken by the parties pose the following issues for consideration:
    
    • (i) Whether LUPNG is a registered legal entity and has standing to institute the proceedings.
      
    • (ii) Whether or not the Plaintiffs are entitled to seek the reliefs sought, that is, permanently restrain the Defendants from acting as the Principal, Deputy Principal and Board Chairman of BTC?
      

Whether the Second Plaintiff has standing to institute the proceedings.

15. The Defendants contend that the Second Plaintiff, Lutheran University of PNG, is not a registered entity and thus has no standing. The Defendants submit that the certificate of registration issued under section 119 of the Higher Education (General Provisions) Act 2014 is irregular, invalid, void, and unsubstantiated in law.
    
16. The relevant law which deals with the issue are sections 119 and 120 of the Higher Education (General Provisions) Act 2014 and sections 37 and 38 of the Higher Education (General Provisions) (Amendment) Act 2020.
    
17. Sections 119 and 120 read:
    

“119. ENACTMENT OF UNIVERSITY ACT IF REQUIRED.

(1) If the National Executive Council grants approval for the establishment of a new private Papua New Guinea university, the Departmental Head shall direct the governing body of the University to cause a Bill for an Act to establish that university to be prepared if required, to be submitted to the Minister who is to table it in Parliament for enactment

(2) If the approved university is not already registered as a higher education institution, the Board may agree to register the entity as a higher education institution for a specific term, while the enactment of an Act under Subsection (1) is pending, to allow the entity to commence operations.

120. CERTIFICATE OF REGISTRATION, ETC.

(1) After approval has been granted, the Departmental Head shall –

(a) give effect to the approval by entering in the register established under Section 9 the prescribed particulars; and

(b) issue a certificate of registration as a university in the form prescribed in a regulation.

(2) If a certificate is lost or destroyed, the Departmental Head may, upon receipt of the fee prescribed in a regulation, issue a replacement certificate.”
18. Sections 119 and 120 of the principal Act are amended by sections 37 and 38 of the Higher Education (General Provisions) (Amendment) Act 2020 as reproduced below:

“37. ENACTMENT OF UNIVERSITY ACT IF REQUIRED (AMENDMENT OF

SECTION 119).

Section 1 19 of the Principal Act is amended -

(a) in the heading by deleting the words "IF REQUIRED"; and

(b) by repealing Subsection (1) and replacing it with the following new subsection:

"(1) If the National Executive Council grants approval for the establishment of a new private Papua New Guinea university, the Departmental Head must direct the governing body of the university to cause a Bill for an Act to establish the university to be prepared and submitted to the Minister to table it in Parliament for enactment."

38. CERTIFICATE OF REGISTRATION, ETC. (AMENDMENT OF SECTION

120).

Section 120 of the Principal Act is amended, in Subsection (1), by repealing Paragraph (b) and replacing it with the following new paragraph:

"(b) issue a certificate of registration as a university in the approved form.".

19. The establishment, governance and management of Universities and Institutions of Higher Education through the DHERST is governed by Higher Education (General Provisions) Act 2014 as amended to date. Under Division 3 of the Act, the National Executive Council has the power to grant approval for the establishment of a new private Papua New Guinea University. Once the NEC grants approval, the Departmental Head of Higer Education shall direct the governing body of the new university to prepare and cause a bill for an Act to establish that university to be submitted to the Minister. The Minister will then table the bill in Parliament for enactment. After the approval is given for the establishment of the university and pending the passing of the Bill, the Department Head shall issue a certificate of registration in the approved form under section 38 of the Higher Education (General Provisions) (Amendment) Act 2020 for the new university to commence operations if not already registered.
    
20. Turning to the present case, the evidence is clear. The Lutheran University of PNG is established by an Act of Parliament, the Lutheran University of PNG Act 2022. The Act is certified by the Clerk of Parliament on 09^th September 2022, and is in force. Pending the enactment of the Bill, the Departmental Head of the DHERST issued a Certificate of Registration to LUPNG as required by section 119 of the Higher Education (General Provisions) Act 2014. The defendants contend that the Certificate of Registration issued is irregular as it is issued under section119 and not under section 120 of the Act or section 88 of the HEA amended Act of 2020.
    
21. Whilst it is arguable that a wrong section of the Act was cited in the certificate of registration, in my view, such irregularity is not fatal and does not materially affect the registration of the second Plaintiff as a private university. The contention by the Defendants is misconceived. The registration process for the establishment of the private Papua New Guinea university is prescribed under Division 3 of the principal HEA Act starting at section 113 with the application and concludes at section 120 with the issuance of the certificate in the prescribed form. The evidence shows the Plaintiffs have followed the process as provided by the Act leading up to the grant of the Certificate of Registration issued on 31^st March 2022.The evidence clearly shows, Parliament has passed an Act for the establishment of the university. The Departmental Head of the DHERST has recognized the second Plaintiff as a private university of PNG and has issued a certificate of registration of the university and are now in the process of assisting the Plaintiffs to get it off the ground. For these reasons, I am of the view that the Second Plaintiff is a private PNG University and is properly established and recognized as a university to be operated by the first Plaintiff, the Evangelical Lutheran Church of PNG. It is therefore a legal entity recognized by law.
    

Whether the Plaintiffs are entitled to the reliefs sought in the Originating Summons.

22. The Plaintiffs seek among other reliefs permanent injunction restraining the Defendants from holding themselves out or performing the duties they currently claim to have.
    
23. Generally, a grant of an interlocutory injunction is discretionary. Its purpose is to maintain status quo until final determination. See Robinson v Airlines Corp (1983) PNGLR 476. A permanent injunction on the other hand is more serious and is sparingly granted. The Supreme Court in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144 discussed the law on permanent injunction. At paragraphs 58-63of the judgment, the court said, and I quote:
    

“58. The law in relation to the grant of permanent injunctions is summarised in the text Spry, Equitable Remedies, Injunctions and Specific Performance, Seventh Edition (1980). At pg.392, Spry (supra) states;

"In all cases, it is a matter of discretion whether an injunction will or will not be granted; but the manner of exercise of that discretion depends on the precise nature of the particular rights that it is sought to protect and on all other material circumstances."

59. Spry (supra) quotes further at pg.393 from the case Pride of Derby and Derbyshire Angling Association Ltd v. British Celanese Ltd [1953] ch.149 at 189, which states;

"An injunction may nonetheless, be refused, as a matter of discretion, should it appear to be unjust or 'highly unreasonable' to grant it, by reference to established equitable considerations such as laches, hardship, acquiescence, the absence of clean hands or such other matters. Further, statutory rights must be taken into account by the Court."

24. The Defendants contend that the Plaintiffs are not entitled to the reliefs sought as Balob Teachers College is still under the control of DHERST and the Plaintiffs have no power and authority to discipline the Defendants.
    
25. The facts are clearly set forth in paragraphs 4 – 13 of this judgment and I will not repeat them except where necessary. There is no doubt that the first Plaintiff is given the approval by the Government of Papua New Guinea to operate a private university. The result is the establishment of the second Plaintiff, the Lutheran University of Papua New Guinea under its enabling Act of Parliament, the Lutheran University of Papua New Guinea Act 2022.
    
26. The Plaintiffs have appointed the University Council, a Vice Chancelor and other senior staff to progress the establishment of the university. The DHERST has given the approval for the LUPNG to take over the current higher learning institutions, Balop Teachers College, the Lutheran College of Nursing and Martin Luther Seminary to form part of the university. The Council and Vice Chancellor of LUPNG have taken steps to make staff appointments and administrative measures for the migration of the existing colleges into the University. Despite these efforts, the defendants have openly defied the authority of the Vice Chancellor which resulted in the disciplinary actions taken against the Defendants. The Defendants have taken the position that the BTC has not yet transited and absorbed into LUPNG and that it is still under the control of the DHERST and that the DHERST is the appointing authority and not LUPNG.
    
27. Despite the assertions by the Plaintiffs that they have taken over the control of BTC from the DHERST and have authority over staff appointments and disciplinary matters, the evidence shows otherwise. There is evidence that the Defendants were recently appointed by the DHERST in their respective positions and that BTC is still under the control and management of the DHERST. This position is made clear by a letter from the Secretary for DHERST, Professor Fr Jan Czuba dated 1^st April 2023.
    
28. The Secretary’s letter was addressed to Dr. Komolong, the Vice Chancellor of LUPNG on the status of LUPNG and BTC and other colleges. The letter is reproduced below:
    

“DEPARTMENT OF HIGHER EDUCATION, RESEARCH, SCIENCE AND TECHNOLOGY

Office of the Secretary

April 01, 2023

Dr. Miok Komolong, PhD

Vice Chancellor

Lutheran University of Papua New Guinea

P O Box 1348

LAE 411, Morobe Province

Papua New Guinea

RE: THE LUTHERAN UNIVERSITY OF PAPUA NEW GUINEA STATUS AND INTEGRATION OF THE LUTHERAN SCHOOL OF NURSING, BALOB TEACHERS COLLEGE, AND MARTIN LUTHER SEMINARY

Dear Vice Chancellor,

Thank you for sending a letter dated March 28, 2023, concerning the subject mentioned above. Allow me to share my views with you.

1. The status of the Lutheran University of Papua New Guinea is very clear. It is a University established by an Act of Parliament.
   
2. The Department of Higher Education, Research, Science, and Technology (DHERST and I are committed to working with you and the University Council to achieve the following:
   
   1. Establish an Organizational Structure for the University with job descriptions for each position.
   2. To ensure that the Academic Board function with the required subcommittees of the Academic Board.
   100. To develop academic policies required for the University to grant academic awards and offer academic programmes.
   4. To develop and establish faculties of the University.
   5. To develop Human Resources and Financial Policies.
      
3. To assist in developing a legally binding amalgamation agreement between the Lutheran School of Nursing, Balop Teachers College, Martin Lutheran Seminary, and the University so the following will take place:
   
   1. Transfer of Colleges to the Lutheran University of Papua New Guinea:
   2. Academic and non-academic staff and staff records
   100. Students and student’s records
   4. Academic programmes
   5. Transfer of Buildings and land (land needs to be negotiated with the Church, and the University might suggest sublease of the land)
   6. Transfer of Equipment
   7. Transfer of Teaching and Research facilities – if any
   8. Transfer of College accounts with funds
   9. Other assets and liabilities of those Colleges
      

As I mentioned to you early, the Lutheran University of Papua New Guinea cannot graduate students as they are not legally enrolled at the University and accepted by the University; thus, we need a legally binding amalgamation agreement which it will make this happen.

We have a lot of work ahead of us, so let us work together so we will achieve all the above-mentioned objectives by the end of this year.

I am willing to assist as much as I can to ensure that the academic integrity of the Lutheran University of Papua New Guinea, the University Council, and the Administration are not compromised at this early stage.

The positive development is that today (April 01, 2023) the University will have a formal swearing-in of the Chancellor and the Council Members; this means that the University Council can operate legally. Congratulations!

Thank you for your attention, and I wish the Lutheran University of Papua New Guinea all the success in the future. I am here to assist; call me when you need me.

Yours sincerely,

(Signed)

Professor Fr Jan Czuba

Secretary”

29. Professor Fr Czuba’s letter shows there is a process to follow to fully establish the University, and of significance is the signing of the amalgamation agreement. There is no evidence that a legally binding amalgamation agreement has been signed between the Plaintiffs and the DHERST for the LUPNG to take full control of BTC. It is clear, the BTC is still under the legal control and authority of the DHERST until the amalgamation process is complete. The Departmental Head for DHERST is therefore the appointing authority and only he can exercise disciplinary powers over the Defendants. For these reasons the administrative and disciplinary actions taken by the Plaintiffs against the Defendants are devoid of authority and are a nullity.
    

Observation

30. These proceedings have dented the smooth take over of the BTC by LUPNG The onus is now on all parties to work together to fully establish the University, so that the efforts of the first Plaintiff, ELCPNG, come to fruition. In my view the DHERST has a big role in guiding the LUPNG to get off to a good start for the benefit of all.
    

Conclusion

31. In the end, having found that the decisions of the Plaintiffs are a nullity, it follows therefore, that there is no interest to protect or status quo to preserve, that is, there is no basis for the permanent restraining orders to be granted against the Defendants. The status quo has not changed for the defendants as their substantive positions in BTC are not affected. For these reasons, the reliefs sought by the Plaintiffs are refused with costs to the Defendants.
    

Orders

32. The Court orders that:

1. The Plaintiffs’ proceeding is dismissed.
2. The Plaintiffs pay the cost of the proceedings to be taxed, if not agreed.
3. Time be abridged.

__________________________________________________
Gor Lawyers: Lawyers for the Plaintiffs
Vijay & Co Lawyers: Lawyers the Defendants