Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Tande v Keko [2018] PGNC 180; N7269 (23 March 2018)

N7269

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 30 OF 2017

JOSEPH TANDE
Plaintiff

V

KIDI KEKO in his capacity as Bomana Gaol Commander
First Defendant

BOTING MANDU in his capacity as OIC Reception and
Discharge Bomana Gaol
Second Defendant

MICHAEL WAIPO in his capacity as Correctional Service Commissioner
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Tamate, J
2018: 16 & 23 March

INJUNCTION – Interim Injunction – Interim order sought to restrain Correctional Service Commissioner from preventing Plaintiff from pursuing studies while serving a prison term – Whether in breach of Court Order to serve imprisonment term. Exercise of discretion by Correctional Service Commissioner pursuant to Sections 101 and 149 of Correctional Service Act.

Facts

The Plaintiff was a student studying law at the University of Papua New Guinea prior to being convicted and sentenced to seven (7) years for the unlawful killing of a fellow student. He was imprisoned on 21^st of August 2015. Upon been admitted to prison to serve his prison term he was classified as a high risk prisoner thus he was detained at “B” Compound of Bomana Correctional Service. He is still detained there on the same classification. He initially filed an HR application to review his due date of release (DDR) which was granted and it was calculated that his DDR with remissions will be on 14^th December, 2019 and without remission will be 14^th April 2022.

He has filed a notice of motion seeking orders to restrain the Defendants from preventing him to pursue further studies at the University of Papua New Guinea claiming his right to training under Sections 101 and 149 of the Correctional Services Act.

He had filed an HR application on 22^nd February 2017, seeking certain reliefs as per his Statement of Claim. He alleges breaches of his Constitutional rights under Sections 36(1), 37 (1), 37(17) and 41 of the Constitution.

Held:

1. Restraining order against Defendants from preventing Plaintiff from pursuing studies at University is refused.
   
2. Leave of absence to attend training or attend social, religious or other activities outside of prison subject to discretion of Correctional Service Commissioner under Correctional Services Act.
   
3. It is proper that prisoners serve imprisonment for their wrong doing for purposes of punishment and rehabilitation. Attending to studies for long periods of time out of prison not in the public interest.
   

Cases cited:
Papua New Guinea Cases

Craftworks Niugini Ltd v Allan Mott (1997) SC525
Employers Federation of PNG v PNG Waterside Workers & Seaman’s Union &Ors (1982) N393
Ewasse Landowners Association Incorporated v Hargy Oil Palm Ltd (2005) N2309
Gary McHardy v Prosec Security & Communications Ltd, trading as Protect Security [2000] PNGLR 279
Golobadana No. 35 v BSP (2002) N2309
In Re: Powers, Functions, Duties & Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014)
Medaing v Ramu Nico Management (MCC) Ltd N4127" title="View LawCiteRecord" class="autolink_findcases">[2010] PGNC N4127
Thaddeus Kambanei vs The National Executive Council and 5 Ors (2016) N3064
Yama Group of Companies Ltd vs PNG Power Ltd (2005) N2831

Overseas Cases

American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396

Counsel:

Plaintiff, in person
Mr. Akia, for the Defendants

23^rd March, 2018

1. TAMATE J: This is a ruling on a notice of motion filed by the Applicant who has appeared in person. The Plaintiff alleges the 1^st, 2^nd, 3^rd Defendants are negligent in that he was not classified as a low risk prisoner thus he has been denied his eligibility for parole and also for further training or studies.
   
2. Plaintiff had filed a notice of motion on 30^th January 2018, seeking restraining orders against the Defendants from preventing him to enrol and pursue his studies at UPNG and issuing any threats in any manner or form and shall allow him to attend school until further orders.
   
3. Plaintiff relies on his Affidavit in support of his Notice filed on 31^st January 2018 which briefly states that he is a prisoner serving 7 years for manslaughter. He was sentenced by the National Court in Waigani on 15^th April 2015.
   
4. He commenced his HRA proceedings on 22 January 2017 for alleged breaches of his human rights by the Defendants. He states that he wants to pursue studies at UPNG as part of his training and rehabilitation so that once he is released back into the society after serving his term he will be able to find employment. He further deposes that registration for enrolment will commence on 9^th February 2018.
   
5. Being a prisoner he was unable to serve the notice of motion on the 3^rd and 4^th Defendants. However, he was able to serve on 1^st Defendant but not on 2^nd Defendant as he was on leave.
   
6. He deposes that Section 101 of the Correctional Service Act (CS Act) does allow a prisoner to pursue further educational training. This is also reinforced by Section 149 of Correctional Service Act and Section 121 of the Correctional Regulation. These sections are as follows:
   

“101. ABSENCE FROM A CORRECTIONAL INSTITUTION

(1) The Commissioner may, by instrument in the prescribed form, authorize a detainee to be absent from a correctional institution.

(2) An instrument under Subsection (1) authorizing the absence of a detainee
from a correctional institution shall specify–

(a) the purpose of the absence; and

(b) the duration of the absence; and

(c) the conditions imposed for the security, custody or supervision of the detainee while absent from the correctional institution.

(3) The purposes for which absence may be authorized under Subsection (1) include but are not limited to–

(a) visiting a member of the immediate family of the detainee or of another person who had a long standing close personal relationship with the detainee where that person is dangerously ill; or
(b) attending the funeral of a person referred to in Paragraph (a); or
(c) attending a doctor, dentist, hospital or clinic; or
(d) taking part in an approved programme; or
(e) attending an educational or training institution; or
(f) doing work approved by the Commissioner; or
(g) attending court.....”

(a) Section 149 of Correctional Service Act:

“149. TRAINING AND EDUCATION

The Regulations shall make provisions for the further education, including religious instruction, of all detainees capable of profiting thereby.”

(b) Section 121 of Correctional Service Regulation provides:

“121. TRAINING AND EDUCATION

(1) The Commanding Officer shall provide a report to the Commissioner annually detailing the Training and Education Programmes for detainees conducted or proposed to be conducted.

(2) A report under Subsection (1) shall provide details of the content of each Training and Education Programme, its duration, its location, the number of detainees who have or will benefit, and the identity and qualifications of the persons conducting the programme.

(3) So far as practicable, the education of detainees shall be integrated with the educational system of the country so that they may continue their education without difficulty after their release.”

Submission by Plaintiff

7. Plaintiff submits that interim injunction should be granted in his favour. He relies on the case of Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279, where he submits that an Applicant for interim orders does not have to prove that there are special or exceptional circumstances to warrant the making of interim orders. That there are no hard and fast pre-condition to be justified.
   
8. Plaintiff has further relied on the cases of Thaddeus Kambanei v The National Executive Council and 5 Ors (2016) N3064, Injia, DCJ (as he then was) and Yama Group of Companies Ltd vs PNG Power Ltd (2005) N2831 in considering the principles necessary for grant of interim injunctive orders.
   
9. Plaintiff submits that:
   
   • (i) If such interim order is not granted he is likely to suffer hardship, inconvenience and prejudice to his rights. He will not benefit from educational training under Sections 101 and 149 of the Correctional Service Act.
     
   • (ii) There is no evidence that he is a flight risk in custody. He says he has been a person of good standing in the prison and that the interests of justice favour the Statutory Constitutional rights of the Plaintiff.
     
   • (iii) He submits that the balance of convenience should favour the granting of the order because if order is not granted and he wins the case on the substantive matter then he will not have access to educational training thus causing hardship, inconvenience, and prejudice to the Plaintiff.
     
   • (iv) Damages is obviously not an appropriate remedy to Plaintiff and he has a compelling statutory and constitutional right to be accorded to him which is equivalent to a statutory and constitutional right and the interim order is a remedy available to this Court to use.
     
10. In conclusion he submits that the interim order sought in the notice of motion should be granted.
    

Defendant’s Case:

11. The Defendants have strongly opposed this application and have relied on affidavits deposed to by:
    
    • (i) Kidi Keko - Bomana Correctional Service (Gaol) Commander – 1^st Defendant filed on 13^th March 2018.
      
    • (ii) Pro. Mangi Matui – Acting Prof. Vice Chancellor – UPNG filed on 14^th March 2018.
      
12. Basically, Defendants have raised a preliminary point that in light of the affidavit contents and matters raised by Professor Matui there is no utility upon which Plaintiff can move this application.
    

Evidence by Defendants

13. According to Professor Matui he deposed that the Applicant had not filed any application to UPNG seeking enrolment to register to pursue his studies. He has not complied with the University requirements for applying for enrolment whereby a person must apply 1 year prior to his enrolment or registration. There is no record to show that Applicant applied for enrolment in 2015, 2016, 2017.
    
14. The registration for enrolment also closed on 9^th February 2018 and Plaintiffs application will not be considered as he too is still serving a prison term for a serious crime. Enrolment is not automatic and one has to apply to the University Council who will make the final decision.
    
15. On the issues regarding classification of Applicant this is a matter for substantive hearing and should not be raised at this stage.
    

Affidavit of KIDDY KEKO:

16. Mr Keko has deposed in his Affidavit that the Plaintiff is currently classified as “high risk” therefore he is in the “B” Compound. Classifications are done according to behaviour and character whilst in prison and the participation by prisoners on work parties, social and religious activities.
    
17. Applicant had not complied with the procedures for applying for leave of absence as per Standing Order 42 of the Correctional Service (Annexure “F”). Records show that no leave of absence application was made for purposes of attending or pursuing his studies at UPNG or other educational institution.
    
18. According to Mr Keko, those prisoners eligible to leave of absence to participate on social or educational activities are those at the MSU Compound, who are low risk but are subject to the final approval of the Correctional Service Commander at each Correctional Service (CS) Institution.
    

Submission

19. The Defendants strongly submitted that the notice of motion should be refused on the grounds that the Plaintiff’s rights complained of as been breached are no longer available to him as an ordinary citizen. He is a prisoner convicted and sentenced to serve 7 years in hard labour. His rights are therefore restricted by law pursuant to Section 42(1) (b) of the Constitution which states:
    

“No person shall be deprived of his personal liberty except –

(a) ...
(b) In the execution of the sentence or order of a Court in respect of an offence of which he has been found guilty ...”

20. Furthermore, the right to education is not automatic in this case as Plaintiff is a prisoner and he is subject to the administration process of Correctional Service and the Commander in charge decides if he is eligible for leave of absence to attend to training or other activity outside of prison.
    
21. Defendant submitted that “educational training” under Section 101 and 149 are subject to the discretion of the Correctional Service Commissioner or Commander. The Correctional Service Commissioner cannot be directed by any person or authority in the exercise of his power under Section 7 of the Correctional Service Act.
    
22. Section 7: Functions of the Service provides:
    
    • (1) The functions of the Service are–
      
      • (a) to take custody and control of all persons committed to–
        

(i) Correctional institutions upon warrant or order of a court; or

(ii) the custody of the Service by any other competent authority under any law in force in the country; and

(b) to provide secure, efficient and humane facilities for the purposes of Paragraph (a) and to manage and maintain them in accordance with this Act; and

(c) to develop and provide meaningful educational training and rehabilitation programmes for the benefit of detainees; and

(d) to provide a commitment to the ongoing pursuit of excellence in correctional management.

(2) So far as it is the prime function of the Service to imprison persons the subject of a warrant or order of a court or judicial officer, the members of the Service are not subject to direction or control by a person outside the Service in the exercise of that function.

23. Defendants have referred to the case of In Re: Powers, Functions, Duties and Responsibilities of the Police Commissioner on the powers of the Commissioner which is not subject to direction by anyone regarding charging of persons. They submitted that similar principles apply to Correctional Service Commissioner on his powers on how to manage the prisoners or persons in their custody in terms of their imprisonment and rehabilitation.

24. If the Plaintiff was allowed to study, each Semester will be 15 weeks per semester and in a year that would be 30 weeks. That will not be proper and will be in contravention of the Court order to serve his sentence in hard labour.
    

RULING ON THE MOTION

Law on Interlocutory Injunctions

25. The principles governing the granting or refusal of interim restraining orders are well discussed in many PNG cases which have adopted the principles in the famous case of American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396. I have also referred to the following cases that have applied the said principles for the purpose of the ruling in this case:-
    
    • - Employers Federation of PNG v PNG Waterside Workers & Seaman’s Union &Ors (1982) N393
    • - Ewasse Landowners Association Incorporated v Hargy Oil Palm Ltd (2005) N2309
    • - Golobadana No. 35 v BSP (2002) N2309
    • - Craftworks Niugini Ltd v Allan Mott SC525 (27 June1997)
    • - Medaing v Ramu Nico Management (MCC) Ltd N4127" title="View LawCiteRecord" class="autolink_findcases">[2010] PGNC N4127
      
26. The principles are well known and applied by our Courts when considering motions for interim injunctions. The National Court Rules also provides the process on Motions for Interim orders in Order 4 Rule 49 (Order 4 Division 5 NCR).
    
27. Can the interim injunction be granted in light of the above principles and based on the facts and circumstances of this case?
    
28. I would answer this question in the following: - NO for the following reasons:
    
    • (i) The question to be tried in the substantive hearing are not that serious because they are issues concerning the discretion of the Correctional Services Commissioner and his Commanding officers.
      
    • (ii) The balance of Convenience does not favour the granting of the interim injunction as Plaintiff is a lawful prisoner and his rights complained off are restricted as a result of his criminal conviction and sentence.
      
    • (iii) There is no undertaking as to damages been filed and even if it was filed that would not be genuine as Plaintiff is a prisoner and may not have the means.
      
    • (iv) Damages will not be an adequate remedy if interim order is granted.
      
    • (v) In the interest of justice it would not be proper for a prisoner to be studying for a long period outside prison when he is required by law and order of the Court to serve his sentence for a serious crime.
      
29. The Plaintiff’s rights to freedom of movement are restricted at present because of his conviction and his imprisonment. His liberty and freedom to employment are limited.
    
30. There is no restriction on Plaintiff to pursue his studies or in seeking employment after he has completed serving his term. Prisoners are sentenced to serve their terms upon an order of the Court for purposes of punishment and also for rehabilitation. In terms of rehabilitation, Correctional Service Commissioner has the discretion to develop and provide meaningful educational training and rehabilitation programs for the benefit of the detainees.
    
31. I am of the view that Correctional Service is responsible for developing educational training within the prison for prisoners to learn and participate in for purposes of rehabilitation. Even if such training is to be held outside the discretion for leave of absence should be properly exercised so that the prisoner does not spend lengthy periods on training but should serve his term of imprisonment as punishment for his wrong doing.
    
32. The right to educational training or participation in other programs out of prison is subject to the discretion of the Correctional Service Commissioner or an authorised Commanding officer. In any event, it is available only to low risk prisoners and not those that are considered high risk as the Plaintiff in this matter.
    
33. In refusing this motion for interim injunction against the Defendants I based by ruling on the following :
    
    • (i) Plaintiff has not applied formally to Correctional Service administration for leave of absence to pursue his studies at UPNG (as per Affidavit by Acting Commander of Bomana CS).
      
    • (ii) There is no formal application for enrolment to UPNG Council by Plaintiff one year before the 2018 Academic year registration thus he is not eligible for enrolment. (per affidavit of Professor Matui)
      
    • (iii) Even if he had applied prior to registration he would not have been successful because of his criminal conviction for a very serious crime and the sentence for 7 years which he is currently serving thus he would not be a fit and proper person to be admitted to practice as a lawyer.
      
    • (iv) It is also in the public interest that Plaintiff completes serving his term before applying for studies or employment.
      
34. For the foregoing reasons I make the following Orders that:-
    
    • (a) Pursuant to Order 4 Rule 49 sub rule 5(ii)(d) of the National Court Rules the requirements for service of the notice of motion on the Second, Third and Fourth Defendants are dispensed with.
    • (b) That orders seeking interim restraining orders pursuant to Order 12 Rule 1 and Order 23 Rule 9 of the National Court Rules, against the First, Second and Third Defendants to prevent the Plaintiff from pursuing studies at University of Papua New Guinea is refused.
    • (c) Cost be in the Cause
    • (d) The matter is now adjourned to 03^rd of April 2018 for pre-trial status conference for on the Substantive matter.
    • (e) Time be abridged.
      

Ruling accordingly,

Joseph Tande: Plaintiff/Applicant in Person
Solicitor General: Lawyer for the Defendant