Boson Wilson v Joseph Kekeya

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 December 2018
• Citation: (2018) N7613
• Court: National Court
• Year: 2018
• Judgement Number: N7613

Full : OS (HR) NOS 24-27 OF 2018; Boson Wilson v Joseph Kekeya & Joseph Ogi and the Divine Word University (2018) N7613

National Court: Cannings J

Judgment Delivered: 12 December 2018

N7613

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NOS 24-27 OF 2018

BOSON WILSON, ROVE OLK,

BENJAMIN BOREWA & AUGUSTINE NEETOH

Plaintiffs

V

JOSEPH KEKEYA & JOSEPH OGI

First Defendants

THE DIVINE WORD UNIVERSITY

Second Defendant

Madang: Cannings J

2018: 10, 20 November, 12 December

HUMAN RIGHTS – disciplinary proceedings re university students – right to full protection of the law, Constitution, Section 37 – proscribed acts, Constitution, Section 41 – principles of natural justice, Constitution, Section 59 – whether students charged with disciplinary offences were afforded full protection of law, dealt with fairly, dealt with harshly or oppressively.

PRACTICE AND PROCEDURE – mode of commencement of proceedings – whether proceedings to challenge decision of university disciplinary board to terminate students’ studies required to be instituted by judicial review – whether appropriate to commence proceedings by application for enforcement of human rights.

The plaintiffs were university students allegedly involved in alcohol-related incidents on or near the university campus. They were each charged with disciplinary offences under the university’s student disciplinary code, found guilty by the student disciplinary board and terminated from studies. They were informed that they had no right of appeal. They instituted proceedings in the National Court by applications for enforcement of human rights, claiming that their human rights were breached in three respects: denial of full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and not given a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution. The chairman and deputy chairman of the student disciplinary board and the university were named as defendants. They argued as a preliminary point that the proceedings were an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. As to the merits of the claim they denied all allegations of breaches of human rights and argued that the plaintiffs had been dealt with fairly in accordance with the student disciplinary code that the students expressly agreed to be bound by when they enrolled for studies at the university.

Held:

(1) The proceedings were not an abuse of process as the plaintiffs were not applying for the type of orders that would make it necessary to commence proceedings under Order 16 of the National Court Rules. They were applying for enforcement of human rights, properly invoking the jurisdiction of the National Court under Section 57 of the Constitution.

(2) The second defendant failed to adhere to the principles of natural justice enshrined in Section 59 of the Constitution in its dealing with the plaintiffs in that: (a) the plaintiffs were given vague and indirect charges, not expressed in the language of the disciplinary code to which they were subject; (b) they were given insufficient time to prepare for the hearing; (c) they were not given copies of witness statements relied on by the disciplinary board; (d) they were not given the opportunity to present witnesses or witness statements to support their versions of events; the consequence being that the second defendant did not act fairly and was not seen to act fairly.

(3) The second defendant thereby failed to afford the plaintiffs the full protection of the law under Section 37(1) of the Constitution and dealt with the plaintiffs in a manner not warranted by the particular circumstances of their particular cases contrary to Section 41(1)(b) of the Constitution.

(4) Declared: that the decisions made by and on behalf of the defendants, to find the plaintiffs guilty of disciplinary offences and to terminate their studies, were unlawful acts for the purposes of Section 41(1)(b) of the Constitution and null and void.

(5) Ordered: that the plaintiffs be reinstated to studies and awarded damages of K1,000.00 each, and costs.

Cases Cited

The following cases are cited in the judgment:

Gene v Hamidian-Rad [1999] PNGLR 444

Jacob Sanga Kumbu v Dr Nicholas Mann (2012) N4746

Manuel Gramgari v Steve Crawford (2012) N4950

National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

APPLICATIONS

These were applications for enforcement of human rights.

Counsel

B B Wak, for the Plaintiffs

G Haumu, for the Defendants

12th December, 2018

1. CANNINGS J: The four plaintiffs are young men who were students at Divine Word University, Madang, allegedly involved in alcohol-related incidents on or near the university campus earlier this year. They were each charged with disciplinary offences under the university’s student disciplinary code, found guilty by the student disciplinary board and terminated from studies. They were informed that they had no right of appeal.

2. They have each instituted proceedings in the National Court by originating summons, making applications for enforcement of human rights. They argue that their human rights were breached in three respects: they were denied the full protection of the law under Section 37(1) of the Constitution, dealt with harshly and oppressively contrary to Section 41(1) of the Constitution and denied a fair hearing contrary to the principles of natural justice in Section 59 of the Constitution. They seek declarations that their human rights were breached and orders for their reinstatement as students and damages.

3. The chairman (Mr Joseph Kekeya) and deputy chairman (Mr Joseph Ogi) of the student disciplinary board are the first defendants and the Divine Word University is the second defendant. They argue as a preliminary point that the proceedings are an abuse of process as the plaintiffs ought to have commenced proceedings by judicial review under Order 16 of the National Court Rules. As to the merits of the claim they deny all allegations of breaches of human rights and argue that the plaintiffs were dealt with strictly but fairly in accordance with the student disciplinary code which implements the university’s zero tolerance of alcohol policy that the plaintiffs expressly agreed to be bound by, when they enrolled for 2018 studies at the university.

ISSUES

4. The following issues arise:

(1) Should the proceedings be dismissed as an abuse of process?

(2) What allegations did the plaintiffs face and how were they dealt with?

(3) Was there any breach of the human rights of plaintiff Boson Wilson?

(4) Was there any breach of the human rights of plaintiffs Rove Olk, Benjamin Borewa or Augustine Neetoh?

(5) What orders should the court make?

1 SHOULD THE PROCEEDINGS BE DISMISSED AS AN ABUSE OF PROCESS?

5. Mr Haumu, for the defendants, submitted that the proceedings are an abuse of process as what the plaintiffs are trying to do is obtain judicial review of the administrative decisions of the defendants to charge them, find them guilty and terminate their studies, which can only be done by making an application for judicial review under Order 16 of the National Court Rules.

6. For two reasons I am not impressed by that argument. First, the Order 16 procedure is only the exclusive procedure for commencing proceedings when two conditions apply:

(a) the plaintiff is applying for orders in the nature of prerogative writs (those described in Order 16, Rule 1(1) of the Rules), and

(b) the decisions reviewed are those of a public or governmental body (National Executive Council & Luke Lucas v Public Employees Association [1993] PNGLR 264, Gene v Hamidian-Rad [1999] PNGLR 444).

7. Here, neither of those conditions apply. As to (a), the plaintiffs are not seeking any of the orders prescribed by Rule 1(1): mandamus, prohibition, certiorari or quo warranto. As to (b), the defendants are not public or governmental officers or bodies. The University is established by statute, the Divine Word University Act 1999, but the members of its governing body, the Council of the University, are appointed not by any government or Minister but by the Head of the Mission of the Society of the Divine Word, which is not a governmental body; and the Council is permitted to govern the affairs of the University free of substantial direction or control by any governmental officer or body.

8. Secondly, the present proceedings have been commenced by the plaintiffs directly under Section 57(1) of the Constitution, which allows any person with an interest in protection and enforcement of human rights to apply to the National Court for enforcement of those rights. The plaintiffs are applying for enforcement of their individual rights, so, clearly, they have a sufficient interest and they have properly invoked the jurisdiction of the Court. They have each filed an originating...