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Molu v Bando [2021] PGNC 472; N9348 (10 December 2021)

N9348

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 634 OF 2019

BETWEEN:
SAMSON MOLU
Plaintiff

AND:
WILLIAM BANDO IN HIS CAPACITY AS PROVINCIAL ADMINISTRATOR FOR HELA PROVINCIAL ADMINISTRATION
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2021: 09^th & 10^th December

PRACTICE & PROCEDURE – Judicial Review & appeals – Application for Mandamus – Order 16 Rule 3 (1) NCR – Substantive Notice of Motion – Mandamus – PSC Decision Section 18 (6) (b) Binding Effect PSM Act 2014 Amended – Affidavit in Support Plaintiff Applicant – Merit in Application – Materials Sufficient –Mandamus Granted – cost follow event.

Cases Cited:

Vakinap v Kambanei [2004] PGNC 264; N3094

Dopsie v Vanuga [2021] PGNC 445; N9207

Hasifangu v Manludu [2019] PGNC 297; N7953

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797

Counsel:

J. Napu, for Plaintiff
E. Bua, for Defendant

RULING

10^th December, 2021

1. MIVIRI, J: This is the decision on the Notice of Motion of the 08^th November 2021 by the Plaintiff seeking a Prerogative writ in the nature of mandamus pursuant to section 18 (6) (b) of the Public Service (Management) Act 2014 and Order 16 Rule 3 (1) of the National Court Rules to compel the defendants to comply with the decision of the Public Services Commission dated the 29^th November 2017.
   
2. This decision annulled the decision of the Hela Provincial Administrator to put the Plaintiff off the payroll from the Public Service. It ordered that he be reinstated immediately to his substantive position HPAHR 003, Designation Training Officer, Grade 12. And he was paid all his lost salaries and entitlements (if any) as a direct result of this unlawful suspension off the payroll in retrospective to the date effected. Any other orders as discretion and cost of the proceedings.
   
3. He was granted leave by this Court on the 04^th August 2021. This is pursuant. He relies in support on his own affidavit of the 13^th September 2019 which sets out the following, he is aged 42 years old from Mendi Southern Highlands. He was employed as Training Officer Hela Province until his dismissal from the Public Service by the termination of his contract on the 26^th October 2016. He was never suspended nor was he charged with any disciplinary charges before his termination. But he applied successfully for review to the Public Services Commission who returned a decision in his favour on the 29^th November 2017. He was reinstated to his substantive position set out above with all entitlements and emoluments to be paid retrospective to the date of his demise. That was to be binding after lapse of 30 days if no challenge was made to it by the Hela Provincial administration. And this motion is evidence of the non-adherence hence the hand of equity sought.
   
4. Allegedly he was terminated over allegation of a major payroll scam and so suffered derogatory over the criminal allegation made. He suffered loss of his repute and standing including career development and prospect. He could not secure any employment stemming from these allegations.
   
5. He was terminated by the defendants on the 26^th October 2016 and the decision of the Public Services Commission was on the 29^th November 2017. It had to be implemented by or before the expiration of 30 days as section 18 (6) (b) of the Public Services Management Act was specific, that if the decision was not implemented within 30 days, it became binding and had the force of law. That decision was never implemented hence this proceeding seeking implementation by Mandamus.
   
6. That is clear from his affidavit sworn of the 12^th September 2019, filed the 13^th September 2019. Annexure “I” of which is the PSC decision on the finding in favour of the applicant/plaintiff restoring him to his position with all entitlements relating and retrospective. That is the decision of a Constitutional Office which holds the actions of the defendants as breaching laws in the termination of the applicant. Natural Justice has not been accorded to the plaintiff and he is restored to his substantive position before the termination with all entitlements relating retrospectively to be paid.
   
7. The State has not disputed the allegation raised now by this motion but concedes that the Public Services Commission made that decision. That maybe so but the Court has discretion to determine the matter and give it proper determination in law by its own facts circumstances and the evidence relied on. In this regard there is no evidence to the contrary filed relied by the defendants as against the application by the Plaintiff. It means the only evidence on record and open is that of the Plaintiff. Which evidence establishes that decision of the public Services Commission in the terms of the motion pleaded here. And this is not the first time that this Court has treated like in Vakinap v Kambanei [2004] PGNC 264; N3094 and Dopsie v Vanuga [2021] PGNC 445; N9207. And yet another example in Hasifangu v Manludu [2019] PGNC 297; N7953.
   
8. Therefore, it will not be out of the ordinary for this Court to follow suit given. The plaintiff has made out a case for the prerogative writ of mandamus by his notice of motion filed within: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797. He is granted as he has pleaded by the notice of motion.
   
9. The formal orders of the court are:
   
   • (1) Judicial review lies and is granted to the plaintiff.
     
   • (2) Mandamus is granted pursuant to Order 16 Rule 1 of the National Court Rules for the implementation forthwith of the PSC decision of the 29^th November 2017 in favour of the plaintiff.
     
   • (3) The applicant is reinstated to his substantive position No. HPAHR 003 Designation-Training Officer, Grade 12.
     
   • (4) The applicant’s lost salaries and other entitlements (if any) as a direct result of the unlawful suspension on the payroll be paid backdated effect to the date of suspension.
     
   • (5) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Napu & Company Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendant