N10547

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 19 OF 2023 (IECMS)

LUCAS KIAP
Plaintiff

V
RONALD MEKETA IN HIS CAPACITY AS MANAGING DIRECTOR OF NATIONAL ENERGY AUTHORITY
First Defendant

AND
JOSEPH GABUT IN HIS CAPACITY AS THE CHAIRMAN OF THE NATIONAL ENERGY AUTHORITY
Second Defendant

AND
NATIONAL ENERGY AUTHORITY
Third Defendant

AND
NATIONAL ENERGY AUTHORITY BOARD
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2023: 05th & 19th October

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Application for Certiorari & Mandamus – Order 16 Rule 5 NCR – Power to Appoint or Terminate Senior Management Vested In National Energy Authority Board Section 14 (1)(c) National Energy Authority Act 2021 – Plaintiff Senior Management Section 14 (1) (c) NEA Act –  Error of Law on Face of Record – Ultra Vires – Audi Alteram Partum Not Accorded –Performance Based 3 years Contract – Contract Expiring 18th November 2023 – Certiorari granted – Mandamus Granted – Reinstatement Ordered with Salary & Entitlements backdated – cost follow event.

Cases Cited:
Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348 
Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122
Lupari v Somare [2010] PGSC 21; SC1071

Counsel:
J. Napu, for Plaintiff 
E. Wembri, for First to Fourth Defendants
M. Narokobi, for Fifth Defendant

DECISION

19th October 2023

1.	MIVIRI, J: This is the ruling on the substantive Notice of Motion of the plaintiff filed the 25th May 2023, pursuant to Order 16 Rule 5 of the National Court Rules, “the Rules,” seeking: 

(a)	An order in the nature of a certiorari to remove into the Court the decision of the First defendant dated 01st July 2022 to terminate him from Executive Manager-Projects with the third Defendant.

(b)	And consequential declarations that the decision above the subject of this proceeding is void.

(c)	An order in the nature of Mandamus to compel the First Defendant to exercise his powers under section 14 (1) of the National Energy Authority Act to reinstate the Plaintiff to Executive Manager-Projects National Energy Authority with backdated Salaries and entitlements from the date of his termination of employment to the time of settlement of the Judgement debts.

(d)	Damages to be assessed by way of pleadings and affidavit at trial on the issue of quantum alone, pursuant to Order 16 Rule 7 of the national Court Rules.

(e)	Interest pursuant to Law and cost for Plaintiff.

(f)	Time is abridged to date of settlement by the Registrar which shall take place forthwith.

2.	He relies on his affidavit filed of the 11th March 2023 sworn of the 03rd March 2023. He alleges that he was terminated from the employment of the National Energy Authority by letter dated the 1st July 2022 addressed to him annexure “I” to his affidavit. It is subjected, “Revocation of Acting Appointment-Executive Manager Projects. …Your conduct and behaviour are unhealthy for this new Authority and is more likely bring NEA into disputes. To ensure smooth operations of NEA, your appointment as Acting Executive Manager Projects is hereby revoked, and you are now considered unattached officer.” This is not termination of the applicant but revocation of the applicant from his post as Acting Executive Manager Projects. This is firmed out by the affidavit sworn of the 25th July 2023 by Ronald Meketa filed of the 31st July 2023. He specifically states at paragraph 13 to 17, “Premised on the above considerations, I was very mindful of the ambiguity hence I selectively revoked the Plaintiff’s appointment as opposed to termination. I only revoked the appointment upon understanding that revocation and termination were two distinct administrative processes. Revocation was intended to make the plaintiff an unattached public servant. As an unattached officer the Plaintiff continued to enjoy the renumeration and perks and privileges as a public servant under his performance-based contract of employment. He was only made unattached but was not terminated as alleged.”

3.	Much of that affidavit contains the reason for the revocation of the applicant’s job. He was unreasonable oppressive incited staff to rebel against NEA Board. And he also harassed Senior Staff members at work. He was by that reason not a fit and proper person pursuant to that fact. In particular on the 22nd June 2022 he stormed into the office of one Betty Kuiye locked the door and harassed her verbally. He also on the 08th June 2022 verbally and physically assaulted one Saul Yangen a senior Human resources Manager. His display of aggression and disloyalty was a threat to the general work environment. It was incumbent on me to instil discipline to ensure a conducive and professional working environment for the NEA staff. And he did not meet the requirement to keep the position as Acting Executive Manager Projects, he did not meet the qualifications to that position. He did not have a master’s degree qualification to suit appointment to that position. 

4.	What is set out above deposed to by the first defendant and defendants in their defence is not the finding of the process of termination by adherence to the Contract, but mere assertions not scaled to the level of evidence worthy of consideration in the determination of this matter. They do not and will not be material in the consideration in the defence case. For these reasons section 59 of the Constitution is not discharged. It will not sustain that He was accorded that right to have a say in the matter as he was advised verbally on multiple occasions both individually and together as old Energy Wing Group officers to desist from intimidating NEA Officers. He chased all the energy wing officers out of my office when the attempt was made to discuss his insubordination actions. Again, this is not evidence in accordance with the Evidence Act and the Rules and do not make any headway for the defence.

5.	And by virtue of the substantive appointment of Eddie Megao to that position Executive Manager Projects, it effectively extinguished the interim position under section 139 of the Act. “Public Interests and good administration demand for a safe and coordinated office environment. If the Plaintiff is reinstated back into NEA, it will be an absolute disaster because he has already caused and created enemies within NEA. Therefore, in order to drive the government energy policies to serve the interests of the public, efficiency in the office demands for the plaintiff to be sent away permanently.” This is an assertion that is without verification by independent evidence that it would be an absolute disaster. There is no evidence worthy of being called evidence within the meaning by the Evidence Act and the Rules of Court for consideration in favour of the defendant. Innuendo and general assertion left without the legs in law will not be considered. And that is what the above excerpt is. It will be not considered in favour of the defendants.

6.	The plaintiff had initially on 18th November 2020 entered into a Senior Officer Performance based Contract of Employment between the Secretary Department of Personal Management and himself Lucas Kiap. Which was for three-year that was due to end on 18th November 2023. And its termination was in accordance with Schedule 3 of the said contract. Grounds of termination included amendments to the empowering legislation employing making his position redundant. Poor performance failure to improve performance following written warning. Non-renewal of the contract because of poor performance. Or breach of the contract following disciplinary action. Or for ill health on the advice of a medical officer, or retirement, or resignation and in the best interest of the State.

7.	The contract described the termination procedure as giving the Senior Officer not less than three calendar months’ notice in writing if the Senior Officer is terminated from the department. Or paying to the Senior Officer salary and allowances listed under schedule 2 calculated up to three calendar months in lieu of notice. And in the event of resignation, he could do that at time provided three months’ notice was given.

8.	Where it was a case of poor work performance the Departmental head shall issue a notice warning the Senior officer to improve and overcome his weakness within a reasonable period of time. If there was failure the Departmental head may terminate the Contract. In the case of termination for causes that were set out from (a) to (i) the departmental head would invoke the disciplinary process, firstly suspending the Senior Officer to conduct an investigation. After which he would, if warranting charge, the Senior Officer with the disciplinary offence. After having considered the Senior Officer’s response may terminate him. And detailed out in the Disciplinary Suspension for Investigation purposes is very detailed procedure. If it is established that it is serious disciplinary offence the Departmental head shall establish a disciplinary committee and the chairman of that Committee shall formally charge the Senior Officer in writing with the offence. And allow the Senior officer to reply to it which shall be in writing to the Chairman of the Disciplinary committee within 10 days of the charges. The Chairman Shall seek legal advice on the Contractual position shall make recommendations to the Departmental head as to the guilt of the Senior Officer or otherwise. After consideration of these material including the recommendation of the disciplinary committee with the Senior Officer’s response having verified the legal Position shall determine whether or not to terminate the contract. The decision of the Departmental head shall be final. But should the Senior Officer not accord acquiescence he has the option to go to the courts, if he considers that the disciplinary action was applied improperly, or unfairly. On the recommendation of the disciplinary Committee the Departmental head may at any stage conclude the disciplinary proceedings and impose a penalty short of termination, by way of warning for the Senior Officer to improve future performance.

9.	There is absolutely no evidence from the defence that this is the procedure accorded leading to the revocation on the 1st July 2022, and then the termination on the 24th August 2022. By itself annexure “I” is merely a letter under hand of the First Defendant Ronald Meketa Acting Managing Director who is not even authorized under the National Energy Authority Act 2021 to revoke the acting appointment of the plaintiff as Acting Executive Manager Projects. He has not demonstrated that he has followed section 14 (1) (c) of that Act in the way that he has acted here. His designation as Acting Managing Director is not read by that section as giving him authority to revoke the appointment of the applicant plaintiff. The Board is defined by section 13 of that Act. It certainly is not the Acting Managing Director. In my view the law National Energy Act 2021 does not distinguish between a transitional period and established period. The application of that law is from that period when the actions of the first defendant eventuate against the plaintiff. He is senior management; he is the acting Executive Manager Project. By the duties that he discharged in that office in that organization he was within that category, a part and partial of the Senior Management. Senior Managers because their appointment and termination rested on the Board, section 14 (1) (c) NEA Act.

10.	Plaintiff is not just an employee or casual employee. His category is specifically defined to be the realm of the dictate of the Board to deal with in the event of appointment or termination. The Board being established as the top of the hierarchy of the Management of the National Energy Authority. Because its duties set out under section 14 of that Act and its composition section 15 entails a very important overarching function supervision of the Authority. If its composition includes the Managing Director or Deputy Managing Director, Secretary of the Department of Treasury or alternate to the level of Deputy Secretary in that Department, and also that of the National Planning with and two non officio members. One experienced in the energy industry and one nominated by the Minister, it is a very important pillar to the management administration of the Authority. It is likened to the Board in a Company. It is the pinnacle of the management of the Authority. So, drawing an analysis with section 139 does not excuse in law the conduct of the first defendant in the revocation of the acting appointment of the Plaintiff.

11.	His actions did not conform to the terms of the Performance Based contract entered into by the plaintiff Lucas Kiap with the Secretary Department of Personal Management as of the 18th November 2020 and no doubt would lapse by 18th November 2023. The first Defendant is not featured in that Contract. The evidence relied by the First Defendant does not establish that what he did is a reflection of the termination terms set out under schedule 3 of that Contract given effect, to revoke the appointment of the Plaintiff. Compliance of that Contract is not there in the hands of the first defendant in the way that he acted towards the plaintiff. Not one iota of the procedure set out in the Contract has been exerted to display the discretion of the first defendant against the plaintiff. It is apparent that the applicant Plaintiff was vindicated as a result of breaches of law apparent on the face of the record. The affidavit of the first defendant sworn of the 25th July 2023 from its beginning with its annexures relied do not entail an action of a Acting Managing Director, and a Managing Director all alone. His admission to choosing revocation as opposed to termination is clear conscientious of being in the wrong from the start.

12.	That evidence does not see life in the defence of this case. But it does give life in law to the actions of the plaintiff. A career man of 15 years’ service to that organization and the State, he has not been the subject of a suspension over an allegation. Or of the many instances depicted out by that annexure “I” to his affidavit letter under hand of the first defendant with all the allegations raised. They are not the subject of investigation in the course of which the plaintiff was suspended pending. And which culminated in charges to the Plaintiff that were processed leading to affirmation of the truth against and now the basis upon which plaintiff was revoked from his appointment and subsequently his termination. It is not a process by law which has revoked and then terminated the Plaintiff. There is no natural Justice, and the case will not stand: Ombudsman Commission of PNG v Denis Donohoe [1985] PNGLR 348. 

13.	Judicial review is concerned with the process rather than what is the substance: Asiki v Zurenuoc Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). 

14.	Here the plaintiff applicant is engaged in law, by that contract set out above. He has come through that door by its terms as of the 18th November 2020. He sustains within until 18th November 2023. His removal in the hands of the First Defendant have not heeded it nor the provisions relevant of the National Energy Authority Act 2021. There is no accord of section 59 of the Constitution, Audi alterum partum. “Listen to the other side, or let the other side be heard as well, no man shall be condemned unheard”. It does not accord with Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122. Because it is overt and apparent that, what the first and all defendants have done is to defy procedure to come out with the decision. It is based on ill will and bad faith rather than law to issue.  The heart of the matter does not lean to the submissions made by the Defendants in any way or form. Because the evidence relied on corroborates in all material assertions what the plaintiff complains off. The contract was in existence 18th November 2020 tying the relationship and it was not reverted to on the 1st July 2022 leading on from that letter, annexure “I”. 

15.	In my view the aggregate is that Judicial Review lies because the First defendant and all other defendants have exceeded their powers. In so doing have breached natural justice. And committed errors of law on the face of the record. They have acted ultra vires the law section 14 (1) (c) with section 59 of the Constitution. No reasonable person in the office that they held would have made the decision they made leading to the demise of the applicant plaintiff. For these reasons certiorari is granted as pleaded to up lift both the decision of the First defendant of the 01st July 2022 revoking the plaintiff as Executive Manager Projects and 24th August 2022 terminating the plaintiff into this Court and quashing both forthwith. 

16.	And Mandamus lies directed to the defendant and all other defendants to compel them in particular the Board to exercise its powers under section 14 (1) (c) of the National Energy Authority Act to in lieu of reinstatement of the Plaintiff to Executive Manager-Projects National Energy Authority, his backdated Salaries and entitlements from the date of his termination of employment to the time of settlement of the Judgement debts and the difference thereof be paid in full with interest. In so ordering I take due account of the Supreme Court in Lupari v Somare [2010] PGSC 21; SC1071 (10 June 2010). And relevant facts that do not lead me to order reinstatement is that today 19th October 2023 would be only 21 days away to when his contract will expire on the 18th November 2023. There is no utility to get back as pleaded. Mandamus will not serve if the object is to be in that position Executive Manager-Projects for 21 days. It would be more conducive to get backdated Salaries and entitlements from the date of his termination of employment to the time of settlement of the Judgement debts and the difference thereof. 

17.	Accordingly, Mandamus lies that the Defendants will pay out all back dated salaries and entitlements from the date of his termination of employment to the time of settlement of the Judgement debts and the difference thereof in full including interest at 2% by the Judicial Proceedings (Interest on Debts and Damages) Act 2015. 

18.	Further I order that damages will be assessed by way of pleadings and affidavit at trial on the issue of quantum alone pursuant to Order 16 Rule 7 of the National Court Rules. And to follow what was seen in Lupari and Asiki (supra). Costs will follow the event forthwith.

19.	The formal orders of the court are:

(1)	The Substantive Notice of Motion of the applicant for Judicial Review is upheld and granted in the terms as pleaded.

(2)	Certiorari lies and is granted to remove into this Court Firstly, the decision of the First Defendant dated the 01st July 2022, revoking the appointment of the plaintiff as Executive Manager Projects, and Secondly, the decision of the defendants of the 24th August 2022 to terminate him from Executive Manager Projects with the third defendant and both decisions are hereby quashed forthwith. 

(3)	A consequential order of Declaration is hereby granted that the subject two decisions set out above the subject of this review proceedings were both void ab initio.

(4)	Further Mandamus lies and is granted directing the Defendants pursuant to compel them in particular the Board to exercise its powers under section 14 (1) (c) of the National Energy Authority Act to in lieu of reinstatement to pay in full all backdated salaries and entitlements from the date of his termination of employment to the time of settlement of the Judgement debts and the difference thereof including interest at 2%. pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015. 

(5)	Further damages to be assessed by way of pleadings and affidavit at trial on the issue of quantum alone pursuant to Order 16 rule 7 of the National Court Rules on date to be fixed. 

(6)	Costs will follow the event to be taxed if not agreed.

(7)	Time is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.
__________________________________________________________________
Napu & Company Lawyers: Lawyers for the Plaintiff/Applicant
Jema Lawyers: Lawyers for First, Second, Third & Fourth Defendants
Office of the Solicitor- Generals: Lawyers for Fifth Defendant