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Amban v Wandil [2020] PGNC 413; N8686 (2 December 2020)

N8686

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 511 OF 2018

BETWEEN:
JOSEPH NOP AMBAN
Plaintiff

AND:
MICHAEL WANDIL as Provincial Administrator for the Jiwaka Province
First Defendant

AND:
JIWAKA PROVINCIAL ADMINISTRATION
Second Defendant

AND:
JIWAKA PROVINCIAL GOVERNMENT
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 14^th October, 2^nd December

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive notice of Motion – Judicial Review – Termination Deputy Provincial Administrator of – PSC appeal upheld reinstating – Refusal failure to implement decision of PSC – Lapse of 30 days since upholding appeal – Decision binding Section 18 (6) (b) Public Services Management Act 2014 – Error of Law not implementing – Motion made out – Balance discharged Mandamus granted – cost follow event.

Cases Cited:

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Boutau v Central Provincial Government [2016] PGNC 117; N6284

Suagu v Ngangan [2018] PGNC 290; N7376

Kereme v O’Neil [2019] PGSC 7; SC1781

Wakendui v Vagi [2020] PGNC 31; N8199

Opi v Telikom PNG Limited [2020] PGNC 168; N8290
Counsel:

J. Topo, for Plaintiff
M. Kuma, for First, Second & Third Defendants
K. Kipongi, for State

RULING

02^nd December, 2020

1. MIVIRI, J: This is the Ruling on the substantive Notice of motion of the Plaintiff filed 14^th March 2019. He seeks:
   
   • (i) An order in the nature of certiorari to bring forth and quash and/or nullify the decision of the first Defendant dated the 13^th April 2015 and 08^th May 2015 to suspend the Plaintiff from his position as the Deputy Provincial Administrator for Jiwaka Provincial Administration pursuant to the decision of the Public Services Commission dated the 13^th July 2017 and pursuant to Section 18 (6) (b) of the Public Services Management Act 2014.
     
   • (ii) An Order in the nature of mandamus compelling the First, Second, and Third Defendants to implement or effect the decision of the Public Services Commission dated the 13^th July 2017 to reinstate the Plaintiff to his position as the Deputy Provincial Administrator, Grade 18 for Jiwaka Provincial Administration pursuant to section 18 (6) (b) of the Public Services (Management) Act 2014.
     
   • (iii) An Order in the Nature of Mandamus compelling the First, Second and Third Defendants to take immediate steps to implement and or effect the decision of the Public Service Commission dated the 13^th July 2017 to pay the Plaintiff all his lost salaries and entitlements retrospective to the date when he was suspended (13 May 2015) pursuant to section 18 (6) (b) of the Public Services (Management) Act 2014.
     
   • (iv) Cost of the proceedings to be paid by the First, Second and Third defendants on indemnity basis including interest at 8% to the Judicial Proceedings (Interest on Debts & Damages) Act 1962.
     
   • (v) Any other others deemed by the Court.
     
2. The motion is supported by the affidavit of the plaintiff sworn 04^th May 2018 filed the 30^th July 2018. He was the Deputy Provincial Administrator for Jiwaka Provincial Administration before the allegations. On the 07^th March 2013 until suspension 13^th May 2015 he was Acting Deputy Administrator Programs & Advisory Services. Annexure “A” is the letter that appointed him as such signed by the Acting Provincial Administrator Jiwaka Provincial Administration Hasavi Tokana. It is covered 07^th March 2013 by an instrument of appointment. With the endorsement of the performance-based Employment Contract on the 23^rd November 2011 his appointment was sealed. And the allegation leading to his suspension annexure “C” evolves threefold, firstly, negligence of duties by misleading councillors in the vote of no confidence, secondly, as a senior officer responsible he did not properly interpret the laws accordingly in relation to the no confidence motion, and thirdly, alleged misuse of public Funds.
   
3. On the 08^th October 2015 he appealed the first Defendant’s decision to suspend him to the Public Services Commission (PSC) to review the decision of the first defendant. It was successfully done the decision of the First Defendant was annulled suspending him. After the conduct of its hearing on the 27^th April 2017 on the 13^th July 2018 it handed down its decision ruling that the Jiwaka Provincial Administration reinstate the Plaintiff back to his substantive position as Deputy Provincial Administrator, Grade 18 back dating all his salaries and entitlements retrospective to the date of his suspension 13^th May 2015. This annexure “E” of the affidavit of the plaintiff.
   
4. The evidence of the plaintiff continues that this decision has not been acted upon in that it has never being implemented to the date of this proceeding. He has not been appointed back as Deputy Provincial Administrator Grade 18 with back date of his salaries and entitlements retrospective to the 13^th May 2015. But this is in the light of section 18 (6) (b) of the Public Services Management Act 2014 binding now since it is from the 13^th July 2018 to the present 2^nd December 2020 it is 2 years 6 months almost since that decision and it has not been implemented. It has the force of law now: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). The Senior Officers Performance based Contract of Employment is dated 13^th November 2010, employing the plaintiff as Deputy Provincial Administrator Jiwaka. He is not acting on that position but is confirmed as the substantive holder of that position.
   
5. The first, second and third defendants have tried to explain out in the affidavit 04^th February 2020 of one Stefan Wusik Acting Provincial Administrator of Jiwaka Provincial Administration that the position JPAEX.002 designated Deputy Administrator for Jiwaka Provincial Administration was advertised 2014 for recruitment. The plaintiff was one of the unsuccessful applicants. He was aggrieved and applied to the Public Services Commission on the 08^th October 2015 which was returned by the Public Services Commission with discontinuance of his review on the basis that it lacked particularity, annexure “A” is that decision dated 06^th March 2018.
   
6. The problem with reliance on that decision is it was initially made but was not the final decision as the latter decision on the matter is that deposed to the evidence by the plaintiff of the 13^th July 2018. Which to the present has not been implemented for 2 years 6 months contrary to the language of section 18 (6) (b) of the Act. It is binding and therefore must be implemented because it is not the first time that this court has gone down that road: Asiki (supra). It is not the same as in Boutau v Central Provincial Government [2016] PGNC 117; N6284 (20 May 2016) where the plaintiff was acting in that position. He could be removed at any time because of that fact.
   
7. Here it is different the plaintiff is the substantive position holder by the contract set out above. And the proper process to enforce is by Mandamus: Suagu v Ngangan [2018] PGNC 290; N7376 (11 May 2018) which has been sought by the plaintiff here. Procedurally he has followed in the right to bring this matter as it is. I am mindful of the decision of Kereme v O’Neil [2019] PGSC 7; SC1781 (28 March 2019) but decision is specific, “Since the Constitutional Amendments were made, they have been implemented. Actions taken under the amendment shall remain in force. The Judgement will have prospective effect only.” It means the appointment of the plaintiff has not been affected at all. He was genuinely appointed and so is within law to move as he does here.
   
8. He follows similar cases as in Wakendui v Vagi [2020] PGNC 31; N8199 (14 February 2020) in that he has the decision of the PSC binding upon the first, second and third defendants by operation of section 18 (6) (b) of the Act because it was not challenged in any way hence it is binding on them to implement. And in this regard Mandamus as pleaded has been discharged by the evidence led to the required balance to be granted in his favour.
   
9. Therefore, by way of Mandamus the First, Second, and Third Defendants are hereby ordered to comply forthwith to implement or effect the decision of the 13^th July 2017 by Public Services Commission to reinstate the Plaintiff to his position as the Deputy Provincial Administrator, Grade 18 for Jiwaka Provincial Administration. If that position is filled the plaintiff is to be reinstated to a position equivalent to his substantive position corresponding.
   
10. And I further order that the plaintiff shall be paid fully his lost entitlements and emoluments calculated from the 13^th May 2015 when he was suspended to the date of trial 14^th October 2020.
    
11. In the light of all, I order that costs will be on an indemnity basis given all set out above that it is awarded where conduct of party or lawyer is so improper, unreasonable, or blameworthy that punishment is warranted: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). Here that is the facts because despite clear dictate of law the matter was unnecessarily dragged into court invoking upon the scares time of the court and the plaintiff. For these reasons it is proper to impose professionalism and compliance of the law clear by costs against those offending.
    
12. The plea for certiorari is inappropriate given the decision of the Public Services Commission pursuant to section 18 (6) (b) of that Act therefore will not be the subject of any determination here.
    
13. The formal orders of the Court are:
    
    • (1) Mandamus is granted to the plaintiff in the terms as pleaded against the First, Second and Third Defendants to implement or effect the decision of the 13^th July 2017 by Public Services Commission to reinstate the Plaintiff to his position as the Deputy Provincial Administrator, Grade 18 for Jiwaka Provincial Administration.
      
    • (2) Alternatively, if that position is occupied the plaintiff shall be reinstated to position equivalent to his previous substantive position.
      
    • (3) The first Second and Third Defendants are further ordered to reimburse fully all lost salaries, entitlements and emoluments calculated from the 13^th May 2013 when he was suspended to the date of trial 14^th October 2020.
      
    • (4) Costs are on indemnity basis to follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Boma Lawyers : Lawyer for the Plaintiff/Applicant

Kuma Lawyers : Lawyer for the First, Second & Third Defendants

Office of the Solicitor General : Lawyer for the State