N7717

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 265 OF 2018

BETWEEN
JUDE TUKULIYA
Plaintiff/Applicant

AND
MR. SAM LORA as Chairman of
National Capital District Education Board
First Defendant/Respondent

AND
NATIONAL CAPITAL DISTRICT EDUCATION BOARD
Second Defendant/Respondent

AND
GEREHU SECONDARY SCHOOL
Third Defendant/Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant/Respondent

Waigani:	  Dingake J
2018  :  21st May

PRACTICE AND PROCEDURE – Application of Stay pending appeal with the National Education Board – held applicant must exhaust administrative remedies.

Cases Cited:

Mc Hardy v Prosec Security and Communications Ltd [2000] PNGLR 279

Counsel:

Mr. J Yakasa, for the Plaintiff
Mr. B Ovia, for the Defendants

21st May, 2018

1.   DINGAKE J:	 This is an urgent application, brought in terms of Order 4 Rule 49(5) (i), (ii) and Order 4 Rule 49 (9) of the National Court Rules to stay the decision of the National Capital District Education Board (NCD) Chairman, Mr. Sam Lora, dated 19th April, 2018, to decommission the plaintiff as Chairman of the Board of Governors of Gerehu Secondary School, pending an appeal to the National Education Board.
2.  The application is contested by the respondents.
3.  The applicant (plaintiff) relies on his own affidavits sworn on the 27th April, 2018. He has also filed an undertaking as to damages.
4.  The facts of this case may be stated briefly. The applicant was elected Chairman of the Board of Governors of Gerehu Secondary School on the 14th of October, 2016, for a period of three (3) years.
5.   On the 19th of April, 2018, the first defendant decommissioned him as the Chairman of Gerehu Secondary School.
6.  On the 27th of April, 2018, the applicant being aggrieved by the decision of the defendants to decommission him filed his appeal with the National Education Board.
7.  On the evidence, it would seem that his complaint is that he was decommissioned without being charged and that there is no evidence that the School Board of Governors took a resolution to decommission him.
8.   On the 27th of April, 2018, the applicant (plaintiff) filed an originating summons seeking an injunctive Stay Order of the decision to decommission  him pending the hearing and final outcome of the Appeal to the National Education Board and a declaration that the Appeal Proceedings instituted by him dated 27th of April, 2018, against the defendants, for decommissioning him as Chairman of Gerehu Secondary School Board of Governors is correct and proper in terms of Section 104(2) of the Education Act.
9.   On the same day the applicant filed the originating summons, he also gave notice to the State in terms of section 5 of the Claims By and Against the State Act.
10.   The relief that the applicant seeks lies within the discretion of the Court.
11.   In this case, the applicant has filed an appeal against the decision of the defendants with the National Education Board. The said appeal is still pending.
12.   I have considered the evidentiary material and submissions of the parties hereto with great care.
13.   In this case, I am not inclined to exercise my discretion to grant the orders sought for a number of reasons.
14.   Firstly, I think it is desirable and proper that the applicant having filed an appeal with the National Board must first exhaust administrative remedies/procedures available to him before coming to this Court.
15.   Secondly, on the papers, I cannot make up my mind on account of insufficient evidence or details whether the applicant has an arguable case at all.
16.  Thirdly, on the evidence, I am not persuaded whether damages would not be an adequate alternative remedy. It is trite learning that where damages may offer an adequate remedy an injunction will not be appropriate. Consequently, this element of the case, on the available evidence, has not been established.
17.  The onus is on the applicant to persuade the Court to exercise its discretion in its favour. The applicant has failed to do so.
18.   For the above reasons, the application is refused with costs.
___________________________________________________________
Yandeken Lawyers: Lawyers for the Plaintiffs
Buri Ovia & Associates Lawyers: Lawyers for the Defendants