Fuawe v Warren [2023] PGSC 65; SC2402 (2 June 2023)

SC2402

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APPEAL NO. 165 OF 2019

MASI FUAWE
First Appellant

AND
DR SAMSON LAUP
Second Appellant

AND
PROFESSOR JOHN WARREN
First Respondent

AND
PNG UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT
Second Respondent

Waigani: Gavara-Nanu, Anis and Berrigan JJ
2023: 27^th April & 2^nd June

APPEAL – S 6 & 10 of the University of Vudal Act – Council had power to cancel, annul or revoke its earlier decision – Appeal dismissed.

Cases Cited

Nil

References Cited

Sections 6, 10 and 40 of the University of Vudal Act, 1997

Counsel

Mr P. Yange, for the Appellants
Mr D. Kamen, for the Respondents

DECISION ON APPEAL

2^nd June, 2023

1. BY THE COURT: This is a decision on an appeal against a decision of the National Court which refused the appellants’ claims for reinstatement to their former positions and the payment of lost salary entitlements.
   

BACKGROUND

2. The appellants are former employees of the Second Respondent. The First Appellant was the University’s Registrar and the Second Appellant its Pro-Vice Chancellor.
   
3. Both were employed at different times under written contracts of employment for three years. The First Appellant was terminated by the First Respondent on 24 April 2017, some 18 months early. The Second Appellant was terminated by the First Respondent on 4 July 2017, almost two years early. Both were terminated on the basis of serious misconduct pursuant to term 18(1)(d) of the Standard Terms and Conditions for Contract Staff, and paid three month’s notice in lieu of salary. Both appealed to the University, albeit out of time in each case. Both subsequently accepted their final entitlements.
   
4. On 31 August 2017 the appellants’ appeals were heard by the University Council, chaired by the late Chancellor Margaret Elias. The Council unanimously decided that the appellants should be reinstated to their respective positions. Ms Elias directed the First Respondent to do so by memorandum dated 5 September 2017. Before the decision was implemented the entire membership of the Council was revoked by the Minister for Higher Education, Pila Ninigi, in the exercise of his powers under s 152(3) of the Higher Education (General Provisions) Act, 2014, effective as of 28 September 2017.
   
5. Professor Kenneth Sumbuk was appointed Chancellor and the Chairman of an interim Council. On 11 October 2017 the interim Council met and resolved to “reaffirm the decision made at the Strategic meeting held on 21 September 2017 to uphold the decision by the Vice Chancellor/Management in the termination of” the appellants, which resolution was recorded in the minutes of its meeting and was implemented.
   
6. The appellants did not seek judicial review of the interim Council’s decision. Rather, they sought reinstatement and damages pursuant to s 57 of the Constitution on the basis that the decision of the former Council of 31 August 2017 was binding on the Second Respondent and that by operation of s 40 of the University of Vudal Act, 1997 it could not be invalidated in breach of their right to protection of the law under s 37(1) of the Constitution, or alternatively, that it was harsh and oppressive and contrary to s 41 of the Constitution.
   
7. The respondents cross-claimed against the appellants on the basis that they were in unlawful occupation of the Second Respondent’s institutional housing.
   
8. The learned trial judge found that the interim Council effectively revoked the decision by the former Council to reinstate the appellants pursuant to ss 6 and 10 of the University of Vudal Act. He also found that there was no breach of s41(1) of the Constitution having regard to the three months’ notice given under the contract, the acceptance of final entitlements by the appellants, and the fact that the appellants continued to occupy institutional housing at the time of the trial.
   
9. He dismissed the appellant’s case and ordered vacant possession of the housing, with damages to be later assessed.
   

APPEAL

10. The notice of appeal contains ten grounds of appeal which are poorly expressed and prolix.
    
11. The essential issue on the appeal is whether the trial judge erred in finding that the decision of the interim Council effectively revoked the decision of the former Council to reinstate the appellants.
    
12. Sections 6 (powers of the university) and 10 (functions of the Council) of the University of Vudal Act, 1997 provide (emphasis ours):
    

6. The University shall have the power–

(a) to grant such degrees as are authorized by the Statutes and such diplomas, certificates or other academic awards as it determines; and

(b) to provide instruction and facilities for study, education and research to persons registered as preparing for degrees, diplomas, certificates or other awards of the University; and

(c) to provide facilities for extramural study and continuing education to persons, whether members of the University or not, in such fields and in such manner as the University may from time to time determine; and

(d) to co-operate in pursuance of any of the objects of the University with any other bodies or persons to enter into agreements authorized by Statute with institutions for their affiliation with or incorporation into the University; and

(e) subject to the Salaries and Conditions Monitoring Committee Act 1988, to appoint academic, administrative and other staff on such terms and conditions of service as the University may determine; and

(f) to provide for promoting the health and general welfare of the students of the University, including the establishment and supervision of residences; and

(g) to regulate and enforce discipline among the employees and students of the University by such measures as the University may determine; and

(h) to cancel, annul or revoke any act done in the exercise of these powers; and

( to do all such other acts or things as may be done under the provisions of this Act or these powers or as may be conducive to the exercise of the attainment of any of the objects of the University.

S. 10

(1) Subject to Subsection (2), the functions of the Council are–

(a) to promote and ensure attainment of the objects of the University; and

(b) to determine University mission and monitor the performance of the University in terms of its mission; and

(c) to formulate university policies and planning guidelines for University management; and

(d) to appoint University officers and academic, administrative and other staff of the University; and

(e) to have the charge of the management and administration of the revenue, property and personnel of the University, and the conduct of all matters relating to the University not otherwise provided for in or under subordinate legislation made in accordance with this Act; and

(f) to approve the Annual Report, Annual Accounts, Audit Report thereon and the budget of the University for the next financial year; and

(g) to exercise such other powers and perform such other duties as may be conferred on it by this Act; and

(h) generally, to take such action as appears to it best calculated to promote the interest of the University.

(2) In determining any matter which directly affects the academic policy of the University, the Council shall consult with the Academic Board.

13. The appellants contend that the learned trial judge erred in finding that the interim Council made a decision to “cancel, revoke or annul” the decision of the former Council pursuant to s 6(h) of the Act when there was no evidence of the strategic meeting on the trial, and the interim Council did not meet and make a specific decision to “cancel, revoke or annul” the former Council’s decision but only to reaffirm the strategic meeting’s decision to terminate the appellants.
    
14. The submissions are rejected.
    
15. It matters not whether there was evidence of the decision of the strategic meeting, an issue that was not raised before the trial judge. The critical decision is the decision of the interim Council, which met on 11 October 2017, and deliberated on whether to adopt the decision or recommendation of the strategic meeting.
    
16. Regardless of the language used, the effect of that decision was to “cancel, revoke or annul” the former Council’s decision, a power which the appellants do not dispute the Council had pursuant to ss 6 and 10 of the Act. It was a deliberate decision made in the context of a number of decisions requiring attention following the replacement of the former Council.
    
17. Furthermore, as the trial judge found, s 10 of the Act provides the Council with specific powers to manage personnel, and generally to take such action as appears best calculated to promote the interest of the University. The decision was made in the exercise of those powers.
    
18. The appeal is dismissed.
    
19. Costs should follow the event.
    

ORDERS

20. We make the following orders.
    
    • (1) The appeal is dismissed.
    • (2) The appellants shall pay the respondents’ costs of this appeal on a party-party basis to be taxed if not agreed.

________________________________________________________________
Islands Legal Services: Lawyer for the Appellants
Kamen Lawyers: Lawyer for the Respondents