Seve v Wangihome [2024] PGNC 23; N10668 (23 February 2024)

N10668

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 95 OF 2023 (IECMS)

BETWEEN:
MARTIN SEVE
Plaintiff

AND:
SAMSON WANGIHOME in his capacity as Chairman of Teaching Service Commission
First Defendant

AND:
MAINI MIKE UGAIA in his capacity as the Commissioner Operations of Teaching Service Commission
Second Defendant

AND:
TEACHING SERVICE COMMISSION
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Dingake J
2023: 6^th & 11^th November, 4^th & 5^th December
2024: 23^rd February

JUDICIAL REVIEW - practice and procedure – application for leave to review administrative decision of the defendants – plaintiff was terminated from his employment as principal of a high school for allegedly contesting National General Election while on paid furlough leave – to be granted leave for review, Plaintiff must establish that he has locus standi, has an arguable case, has exhausted administrative remedies and that he has not delayed to bring this application - Plaintiff has failed to give a satisfactory and or reasonable explanation for the delay - application for leave is refused

Counsel:

Mr. Carl Kuira, for the Plaintiff
Mr. Justin Issac, for the Defendants

RULING

23^rd February 2024

1. DINGAKE J: This is my brief ruling with respect to the Plaintiff’s leave application filed on the 6^th of September 2023.
   
2. The Plaintiff applied to be granted leave to review the decision of the First and Second Defendants to terminate his employment as the Principal of Laloki Secondary School on the 11^th of October 2022.
   
3. In his Statement made under Order 16 Rule (3)(2) of the National Court Rules (NCR), the Plaintiff says his employment was terminated by letter dated 11^th of October 2022, and counter signed by the First and Second Defendants.
   
4. The First Defendant is Samson Wangihome, in his capacity as Chairman of the Teaching Service Commission.
   
5. The Second Defendant is Maini Mike Ugaia, in his capacity as the Commissioner Operations of Teaching Service Commission.
   
6. The Teaching Service Commission is cited as the Third Defendant.
   
7. It would seem that the allegation that precipitated the termination of his employment was that he breached Sections 122 and 124 of the Teaching Service Act 1988, by contesting the 2022 Elections, when he was on paid furlough leave.
   
8. The Plaintiff seeks to review the decision to terminate his employment on several grounds, including that the decision was harsh, contravened the principles of natural justice and was ultra vires the provisions of the Teaching Services Act.
   
9. The State, represented by learned Counsel, Mr. Issac, oppose the leave application on a number of grounds, namely, that the Plaintiff does not have locus standi to bring this proceeding; that the Plaintiff’s contract of employment was governed by private law and not public law; that the Plaintiff chose the wrong mode of proceedings and that there was undue delay to bring this proceeding.
   
10. In order to succeed in this application, to be granted leave, the Plaintiff must establish the following:
    
    • (1) That he has locus standi.
    • (2) That he has an arguable case.
    • (3) That he has exhausted administrative remedies.
    • (4) That he has not delayed to bring this application.
      
11. The State’s argument that the Plaintiff has no locus standi is based on the assertion (not evidence) that he was serving under a contract of employment governed by private law and not public law and that at the time he instituted this proceeding, his contract had long expired.
    
12. I have not found any evidence to support this assertion or arguments. I accordingly reject the submission that the Plaintiff has no locus standi to bring this proceeding as devoid of merit.
    
13. Similarly, there is no evidence to support the argument that the relationship between the parties was based on a contract of employment governed by private law and not public law. There is also no merit in the argument that the Plaintiff chose a wrong mode of proceedings. This argument was not substantiated and was therefore not established.
    
14. There is only one ground worthy of close examination, namely, that the Plaintiff delayed to bring this proceeding within four (4) months of the decision sought to be reviewed being taken.
    
15. The Plaintiff in his own written submissions says he delayed to file the proceedings by ten (10) months. My calculations suggest that the Plaintiff delayed by about seven (7) months. However, what is not disputed is that the Plaintiff failed to bring this proceeding within the required four (4) months.
    
16. In his Affidavits filed in support of this application, including the Plaintiff’s Affidavit filed on 6^th September 2022 (Doc No. 5) and the Plaintiff’s further Affidavit filed on 1^st of February 2023, the Plaintiff explains that the delay was occasioned by the fact that he had appealed to the Minister of Education, Mr. Uguro, who delayed in responding to his appeal.
    
17. The Plaintiff points out that on the 28^th of November 2022, he drafted an appeal to the Minister. He avers that the Minister had on or about the 10^th of January 2023, indicated that he should be reinstated.
    
18. He was not reinstated.
    
19. On the 3^rd of February 2023, he made a follow up letter to the First and Second Defendants requesting them to rescind their decision.
    
20. The request was not granted.
    
21. The Plaintiff says that he wrote another follow up letter to the First Defendant on the 29^th of July 2023, and when no response was forthcoming, and as a last resort he filed this application on the 6^th of September 2023.
    
22. Our law states that the Plaintiff who is late to bring the leave application within the required four (4) months period may still be granted leave to mount judicial review if he gives satisfactory or reasonable explanation to the Court for the delay.
    
23. As I have indicated earlier, there is no dispute that there was a delay of about seven (7) months. Quite plainly the delay, in the circumstances of this case is inordinate. The explanation of the Plaintiff is that he was hopeful that the Minister for Education and or the Defendants would attend to his appeal or requests in time, but they did not, hence the delay.
    
24. On the evidence, the Plaintiff kept on making follow ups to the Minister and or the Defendants. This he did in November, December 2022, February 2023 and July 2023. He does not explain what he did in April, May, June and August 2023. In my mind, given the time sensitive nature of judicial review proceedings every month that passed must be accounted for. In this case the Plaintiff did not account for the months referred to earlier.
    
25. In my considered opinion, having regard to the circumstances of this case and the totality of the evidence before me, the Plaintiff has failed to give a satisfactory and or reasonable explanation for the delay. The application for leave is refused on this ground alone.
    
26. In the result:
    
    • (a) The application for leave is refused with costs, such costs to be agreed or taxed.

_______________________________________________________________
Peter Daime Kaii Lawyers: Lawyer for the Plaintiffs
Lawama Lawyers: Lawyer for the Defendants