Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Iboro v Wailoni [2024] PGNC 267; N10935 (26 July 2024)

N10935

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 6 OF 2023

PAUL IBORO
Plaintiff

V

JOSEPHINE WAILONI, STUDENTS DISCIPLINARY APPEAL COMMITTEE CHAIRPERSON & VICE-PRESIDENT,
DIVINE WORD UNIVERSITY, MADANG CAMPUS
First Defendant

THE DIVINE WORD UNIVERSITY
Second Defendant

Madang: Cannings J
2024: 25^th & 26^th July

HUMAN RIGHTS – disciplinary proceedings re university student –– principles of natural justice, Constitution, s 59 – proscribed acts, Constitution, s 41 – whether student found guilty of disciplinary offences was afforded full protection of law, dealt with fairly, dealt with harshly or oppressively.

The plaintiff was a university student who was charged with and found guilty by a disciplinary board of disciplinary offences in relation to alleged assault of female students on campus. He was terminated from studies. He then appealed to an appeals committee, which dismissed his appeal against some guilty findings and sustained his appeal against two guilty findings and reduced the penalty from termination from studies to suspension for four semesters. He commenced proceedings in the National Court, seeking declarations that he was not afforded a fair hearing as required by s 59 of the Constitution and that the decision of the appeals committee was harsh and oppressive and unlawful by virtue of s 41 of the Constitution. He sought orders to set aside the decision of the appeals committee and that he be reinstated to studies and that he be paid compensation. His two principal arguments were that the charges laid against him were poorly drafted and unclear and resulted in him not being given a proper right to be heard and that the decision of the appeals committee was unreasonable and made in ignorance of his good faith efforts to apologise for his actions, which had been misinterpreted by the female students affected, and to reconcile with them.

Held:

(1) The defendants did not fail to adhere to the principles of natural justice enshrined in s 59 of the Constitution in their dealing with the plaintiff as: (a) the charges were sufficiently clear; (b) the plaintiff was given sufficient time to prepare for the hearing; (c) he was given copies of witness statements relied on by the appeals committee; (d) he exercised the opportunity to present witness statements to support his version of events.

(2) The defendants did not ignore the plaintiff’s efforts to compensate the complainants and reconcile with them. The appeals committee was entitled to accept the evidence of the complainants and to reject the plaintiff’s version of events. Given the seriousness of the offences committed by the plaintiff, the decision of the appeals committee to suspend him for four semesters was not harsh or oppressive.

(3) Proceedings dismissed.

Case Cited
Wilson v Kekeya (2018) N7613

Counsel
B B Wak, for the Plaintiff
E Ulach, for the Defendants

26^th July 2024

1. CANNINGS J: The plaintiff, Paul Iboro, was a student at Divine Word University who was charged with and found guilty by the Student Disciplinary Board of disciplinary offences in relation to alleged assault of female students on campus in an incident at the student dining hall on 4 May 2023. He was terminated from studies.

2. The plaintiff then appealed to the Disciplinary Appeals Committee, which dismissed his appeal against four guilty findings and sustained his appeal against two guilty findings and reduced the penalty from termination from studies to suspension for four semesters.

3. He has commenced these proceedings in the National Court, seeking declarations that he was not afforded a fair hearing as required by s 59 of the Constitution and that the decision of the appeals committee was harsh and oppressive and unlawful by virtue of s 41 of the Constitution.

4. He seeks orders to set aside the decision of the appeals committee and that he be reinstated to studies and that he be paid compensation.

5. His two principal contentions are: (1) that the charges laid against him were poorly drafted and unclear and resulted in him not being given a proper right to be heard, and (2) that the decision of the appeals committee was unfair, unreasonable, harsh and oppressive and made in ignorance of his good faith efforts to apologise for his actions, which had been misinterpreted by the female students affected, and to reconcile with them.

WAS THE PLAINTIFF DENIED A PROPER RIGHT TO BE HEARD?

6. The plaintiff’s counsel, Mr Wak, is critical of the drafting of the charges and submits that because of their poor drafting, it was difficult for the plaintiff to know the case that he had to respond to.

7. The charges were set out in a letter to the plaintiff dated 11 May 2023 from the Director of Student Services, Evelyn Tekepa, headed “Notice for Disciplinary Case 4.5.23 to be heard on Friday 19.5.23”, which stated:

After gathering reports from eyewitnesses and statements, DWU Student Disciplinary Board will be holding a special meeting to deliberate on your case of 4.5.23 on Friday 19^th May 2023 at 1.30 pm in the Student Services Conference Room.

Incident report manifests that on Thursday 4^th May 2023 between 7-730 pm in the student dining hall you physically assaulted female students who were in the mess to be served. According to statements you were under the influence of alcohol and your behaviour at that time was abusive and not of a Divine Word University student. The following alleged offences are therefore laid against you:

5.2 Category A Offence

Bullet C: Assault, verbal or physical

5.3 Category B Offence

Bullet A: Disorderly conduct

Bullet B: Disrespect/rudeness

Bullet H: Breaches of boarding rules or policy guidelines

5.5 Category D offences

Bullet C: Drunkenness off and on campus is unacceptable behaviour for a DWU student and is strictly prohibited.

Bullet G: Being impaired from the use of drugs or alcohol on University premises is prohibited.

The Student Disciplinary Board will consider all relevant information and will deliberate on the alleged offences above. In this disciplinary meeting, you are allowed to solicit representation if you wish to bring another person to act as an advocate on your behalf. ...

Copies of incident statements and all reports are available for your perusal. Attached is the copy of the Student Discipline Policy and Process for your perusal.

8. I reject the submission that the charges are so poorly drafted that the plaintiff was denied a proper right to be heard. It can be easily understood by any reasonable person that the plaintiff was facing six charges relating to an alleged incident involving physical assault of female students in the student dining hall between 7 and 730 pm on 4 May 2023. The plaintiff could be under no misunderstanding of the time or place or nature of the alleged incident. The six charges clearly emanate from the Student Discipline Policy and Process document, and he was given a copy of that document.

9. The plaintiff’s own evidence in the trial in the National Court reveals that he was acutely aware of the alleged incident of 4 May 2023. He does not deny that there was such an incident. He gave evidence in this court of that incident and he gave evidence before the Student Disciplinary Board and before the Appeals Committee putting his version of events. He essentially admits that he did assault at least one female student and gives his explanation for that. He says he was very tired and hungry after staying up the previous night preparing for an exam. He gave evidence about his attempts to reconcile with the complainant a couple of days after the incident.

10. There is no doubt that he understood the charges he had to meet. He understood that he was charged with assaulting female students, that he had engaged in disorderly and disrespectful conduct, that he had breached boarding rules and policy guidelines and that he was drunk and impaired from the use of alcohol on University premises.

11. The facts of this case can be distinguished from those in Wilson v Kekeya (2018) N7613, a similar sort of case to the present, in which the plaintiffs were students at Divine Word University who were charged with involvement in alcohol-related incidents. I held that the plaintiffs were denied a proper right to be heard as they were given vague and indirect charges and not given sufficient time to prepare for the disciplinary hearing, not given copies of witness statements and not given the opportunity to present witness statements to support their version of events.

12. I find in the present case that the defendants adhered to the principles of natural justice enshrined in s 59 of the Constitution in their dealing with the plaintiff as (a) the charges were sufficiently clear; (b) the plaintiff was given sufficient time to prepare for the hearing; (c) he was given copies of witness statements relied on by the appeals committee; and (d) he exercised the opportunity to present witness statements to support his version of events.

13. The plaintiff was not denied a proper right to be heard.

WAS THE APPEALS COMMITTEE DECISION UNFAIR, UNREASONABLE, HARSH AND OPPRESSIVE?

14. Mr Wak submits that the Appeals Committee’s decision to impose a suspension from studies of four semesters was unfair, unreasonable, harsh and oppressive, in that:

1. the Committee found that there was no evidence of intoxication;
2. the Committee failed to acknowledge that there was evidence of remorse;

100. the Committee failed to consider alternative penalties;

4. the first defendant, the Committee’s chairperson, breached the student disciplinary policy by directly writing to the plaintiff informing him of the Committee’s decision, when the notification of the decision should have been given by the University Registrar;
5. there was no report from the Committee to the University Registrar, as required by clause 8.7 of the student disciplinary policy.
   

15. As to the Appeals Committee’s finding that there was no evidence of intoxication, this demonstrates that the Committee carefully considered the merits of the appeal and explains why the Committee lessened the severity of the penalty. It does not mean that it followed that the Committee was bound to set aside the four other guilty findings. The Committee heard evidence from both sides and decided to accept the complainants’ evidence.

16. There was no failure to acknowledge evidence of the plaintiff’s remorse or his attempts to compensate and reconcile with the complainants. There is evidence that the principal complainant made a statement that referred to an attempt at reconciliation a couple of days after the incident that led to the charges. She says she felt bullied and was under pressure to drop her complaint. This evidence was considered by the Committee.

17. The penalty of suspension from studies was clearly available to the Appeals Committee, given that it dismissed the bulk of the plaintiff's appeal against the findings of the Disciplinary Board. This was a rational and considered decision, which was not unreasonable or objectively unfair.

18. As for the points made in (d) and (e), these are upheld, but they are procedural breaches only and do not show that any prejudice was done to the plaintiff.

CONCLUSION

19. The plaintiff’s two principal contentions are rejected. I conclude that the defendants did not fail to adhere to the principles of natural justice enshrined in s 59 of the Constitution in their dealing with the plaintiff as (a) the charges were sufficiently clear; (b) the plaintiff was given sufficient time to prepare for the hearing; (c) he was given copies of witness statements relied on by the appeals committee; and (d) he exercised the opportunity to present witness statements to support his version of events.

20. The defendants did not ignore the plaintiff’s efforts to compensate the complainants and reconcile with them. The appeals committee was entitled to accept the evidence of the complainants and to reject the plaintiff’s version of events. Given the seriousness of the offences committed by the plaintiff, the decision of the appeals committee to suspend him for four semesters was not unfair, unreasonable, harsh or oppressive.

21. I refuse to grant any of the relief sought by the plaintiff. As to the question of costs of the proceedings, I raised this issue with both counsel at the end of submissions. Mr Wak, for the plaintiff, submitted that if the plaintiff were successful, he would seek costs in the fixed sum of K15,000.00 to K20,000.00. Mr Ulach, for the defendants, submitted that if the defendants were successful, the plaintiff should be ordered to pay the defendants’ costs on a solicitor-client basis. I think both submissions are inappropriate in a case such as this, where a former student seeks relief against his former university, claiming breaches of human rights and where both sides have inevitably incurred considerable costs in engagement of private counsel. The plaintiff has not succeeded, but there is no good reason for the court to order costs against him on a solicitor-client basis. I have considered whether I should order the parties to bear their own costs as the plaintiff has raised many arguable points and I consider that he has been properly motivated in commencing the proceedings. However, I think the interests of justice would best be served by ordering that the plaintiff pay a moderate and reasonable sum to the defendants. I will order that the plaintiff pay the defendants’ costs in the fixed sum of K2,000.00.

ORDER

(1) All relief sought in the originating summons is refused.

(2) The proceedings are dismissed.

(3) The plaintiff shall pay the defendants’ costs of the proceedings in the fixed sum of K2,000.00 by 31 August 2024.

________________________________________________________________
Bradley Wak Lawyers: Lawyers for the Plaintiff
Posman Kua Aisi Lawyers: Lawyers for the Defendants