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Wabira v Bando [2020] PGNC 418; N8688 (7 December 2020)

N8688

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 635 OF 2020


BETWEEN:
HANDAI WABIRA
Plaintiff


AND:
WILLIAM BANDO ADMINISTRATOR OF HELA PROVINCIAL ADMINISTRATION
First Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Miviri J
2020: 21st October, 7th December


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Judicial Review – Section 18 (6) (b) Public Services – Lapse 30 days Binding – No Implementation Hela Provincial Administration – No cogent or convincing reasons non-compliance – grounds made out – Balance discharged – Mandamus granted – cost follow event.


Cases Cited:


Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66
Kereme v O'Neill [2019] PGSC 7; SC1781
Jaminan v The State [1983] PNGLR 318
Wakendui v Vagi [2020] PGNC 31; N8199
Hasifangu v Manludu [2019] PGNC 297; N7953
Opi v Telikom PNG Limited [2020] PGNC 168; N8290


Counsel:


J. Napu, for Plaintiff
R. Uware, for Defendant
RULING

07th December, 2020

  1. MIVIRI, J: This is the Ruling on the plaintiff’s Substantive Notice of Motion under order 16 Rule 5 of the National Court Rules for an order in the nature of a prerogative writ of Mandamus, pursuant to section 18 (6) (b) of the Public Services (Management) Act 2014, to compel the defendants to comply with the Decision of the Public Services Commission of the 05th April 2018. That decision is:
  2. Leave was granted on the 18th February 2020 by this Court.
  3. The plaintiff was employed under a contract of employment as a Small Medium Enterprises Officer with the Hela Provincial Administration until the 26th October 2016 when that was terminated by the first defendant the Provincial Administrator William Bando. He was not charged nor suspended leading up. He was removed from the payroll without any notice. He applied to the Public Services Commission for review against his dismissal under section 18 of that Act.
  4. He was successful and on the 05th April 2018, the Public Services Commission nullified the decision of the Hela Provincial Administrator, and ordered particulars set out above. Which included reimbursement of his lost salaries and other contractual entitlements pertaining. It was to be binding pursuant to section 18 (6) (b) if not implemented within the expiration of 30 days. Since that date, the 05th April 2018 up to the date of the institution of this proceeding, the review successfully given in his favour by the Public Services Commission has not been implemented by the Hela Provincial Administrator the first defendant.
  5. This proceeding seeks mandamus to enforce and to have that decision implemented by the first defendant because it “is binding after a period of 30 days from the date of the decision”. And the demonstration trite is Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) the Provincial Administrator was in receipt of the recommendation as here by the Public Services Commission. He had a duty to implement it or give cogent and convincing reasons why he was not adhering and implementing that decision. He did not do so, and the Court ordered the instalment of the appellant together with all moneys, due and payable arising from the employment were paid to him.
  6. In circumstances where it is clear that a duty imposed on a provincial administrator by or under a Constitutional Law has been breached and that an error has been made by the National Court, it is in the interests of justice for the Supreme Court to judicially review the administrative decisions of the provincial administrator and make orders calculated to avoid a further multiplicity of proceedings. The Supreme Court ordered the reinstatement of the appellant and the payment to him of the salary and emoluments lost because of his unlawful dismissal.
  7. In so doing it held that the duty to give reasons for an administrative decision is an integral part of the duty to accord natural justice. If no reasons are given it is inferred that there were no good reasons for the decision made. It approved the decision of Godfrey Niggints v Henry Tokam, Paul Songo and The State [1993] PNGLR 66. Which is similar here, there the Applicant a senior Correctional Services officer was alleged to have committed improper conduct against which was the subject of three investigations directed by the Commissioner, the first respondent. The Deputy Commissioner who authored the third report strongly recommended against the laying of charges against the Applicant. But the Commissioner directed the Deputy Commissioner to lay the charges and the Commissioner by his power sustained and ordered the Applicant dismissed and terminated from the correctional service. This was done. The Applicant appealed to the Public Service Commission under s.17 of the Public Service (Management) Act 1986. The PSC reviewed and recommended revocation of the first respondent’s decision. The first respondent rejected the PSC recommendations without giving any reasons and confirmed his decisions.
  8. The Applicant instituted and applied for judicial review of that decision. The court upheld and reasoned that the Departmental Head has discretion to charge an officer on proper prima facie grounds and not arbitrarily. And that it had committed an error in its discretion to direct the laying of charges against the applicant when the Deputy Commissioner unequivocally recommended against the laying of charges against the applicant. Further that the Departmental Head has public duty and responsibility to exercise discretion to accept or reject recommendation of the PSC Review, on good meritorious grounds and not arbitrarily without reasons. And here had committed an error in the exercise of his discretionary power not to accept the recommendations of the PSC to revoke his decisions, without stating any reasons. The findings of guilty of improper conduct and penalties of dismissal from service against the applicant were quashed. And the applicant was reinstated to former substantive position with restoration of all entitlements, retrospective to date of dismissal.
  9. The plaintiff has no reasons accorded within the law set out above by the first defendant leading eventually to his termination. And the review successful from the Public Services Commission drawn out in full to the First Defendant has brought no reasons from him as to why he refuses or does not express a stand in the decision and its implementation. This is unlawful and a commission of error of law by the first defendant in not disclosing a reason as to why he is not abiding or taking a stand in respect. This ground sustains that Judicial review lies against the First Defendant for not so providing. And it is in breach of the principles of natural Justice that are Constitutionally entrenched under section 59. There is a duty upon the first defendant to disclose to the plaintiff a reason as to the noncompliance of the decision of the Public Services Commission. Why he cannot implement it. Because as set out in the law by the cases above the actions of the First Defendant are errors of law upon which Judicial review lies in favour of the plaintiff here.
  10. What is not clear as to why the reasons asked for where not responded to by the First defendant. It means by the law above there are no good reasons. And because there are no reasons or evidence relied on to the contrary, the court will act on the evidence that has been put by the Plaintiff. There are no affidavits or material filed opposing or giving another view in law on the matter. A court is bound by the evidence led and will act on it unless there are reasons in law and fact that settle otherwise than to act.
  11. In this regard the State has sought to rely on Kereme v O'Neill [2019] PGSC 7; SC1781 (28 March 2019) arguing that the amendment of the Public Services Management Act 2014 is no longer law applicable because this case was instituted in September 2019 and the plaintiff has not come by way of the correct law in his originating Summons with all other documents supporting. This argument was not raised in the leave stage by the State who has allowed it to come this far where substantial relief is now sought. Importantly the State is the only party accessible to the leave application and must therefore bring all relevant matters to heart there. It would be late to rely on that fact here when the decision made with the contribution of the state to where it is now. On the converse is I am mindful of that decision of Kereme (supra) which is specific to the point that has been raised, “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 reliance by the plaintiff has not been affected at all. He was genuinely within law to move as he does here to move. This argument is without merit and fails.
  12. The State is asserting to leading a blind horse in the direction it wants to, but it itself is blind because it has not filed affidavits or material upon which it can assert that there is no clear evidence suggesting that the First Defendant was deliberate and vicious in his decision to disobey the PSC. The law is as good as the evidence relied on and the State has failed to bring the net away from where it is now engulfed by its error in the process of law set out succinctly by the Supreme Court reinforcing what this court has seen also set out above. The consequence in law is there is independent corroboration of the assertions made by the plaintiff as in Jaminan v The State [1983] PNGLR 318 (29 September 1983). There is the resultant of the incredible position the State has taken in this proceeding particulars pointed out above. It is clear the law has been breached in the terms as alleged by the plaintiff. And in this light the State has without any proper basis either in law or evidence sought to fight tooth and nail where it does not have its tooth nor nails in place by the evidence and the law. The rape in Jaminan was corroborated independently by his false denials. The same is so of the state in this instant in the way set out above.
  13. Accordingly, I am fortified to find that the evidence of the failure to adhere and to comply with the decision of the PSC is discharged to the required balance by the Plaintiff. I find as a matter of fact that the PSC decision set out above has in all respects being breached and is breached as at the date of this Judgement by the first defendant. I further find that there are no cogent or convincing reasons advanced as to why the failure and noncompliance in heeding that decision by the first defendant. And I find that since the 05th April 2018 to the date of this decision the decision by the Public Services Commission has not been implemented constituting a breach upon the hands of the first defendant as pleaded. That decision is annulled in accordance with the Public Service Commission decision, Wakendui v Vagi [2020] PGNC 31; N8199 (14 February 2020). And Mandamus pleaded has been discharged by the evidence led to the required balance to be granted in his favour.
  14. Therefore, by way of Mandamus the First Defendant is hereby ordered to comply forthwith to implement or effect the decision of the 05th April 2018, by the Public Services Commission to immediately reinstate Mr. Wabira to his substantive position No. HPAEA 006 Designation Small Medium Enterprises Officer grade 13.
  15. Alternatively, if that position is occupied that he be reinstated to a position with equal or like designation.
  16. Further mandamus lies in that Mr. Wabira is paid all his lost salaries and entitlements (if any) as a direct result of his unlawful suspension off the payroll in retrospective to the date effected. In this regard, I make no order as to damages although counsel has argued and cited Hasifangu v Manludu [2019] PGNC 297; N7953 (13 February 2019) the application is qualified here because this is primarily on the review by the Public Service Commission being not implemented pursuant to section 18 (6) (b) it is not clear as to why the actions of the first defendant in the first place. Unlike Hasifangu (supra) there is undisputed evidence that the first defendant had no power to discipline the plaintiff. Thus, this is a clear case in which the plaintiff would have been awarded damages had she brought a civil suit against the defendants. The defendants have not challenged the PSC decision either.
  17. That is not the same here even though it has been pleaded in the substantive motion sought. And by the authority of Order 16 rule 7 it would be a case where proper pleadings would have to be set out to arrive at damages. I will therefore not make any order but grant leave for appropriate proceedings under the rules to so seek. There is no clear admission of liability by the first defendant.
  18. In respect of costs 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 scare 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.
  19. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants

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