The Board Of Management, Holy Spirit Primary School v Moses Sariki, Director, Madang Provincial Education Office and Moses Gabuogi and Madang Provincial Education Board (2013) N5446

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 14 December 2013
• Court: National Court
• Citation: (2013) N5446
• Docket Number: OS NO 303 OF 2013
• Year: 2013
• Judgement Number: N5446

Full Title: OS NO 303 OF 2013; The Board Of Management, Holy Spirit Primary School v Moses Sariki, Director, Madang Provincial Education Office and Moses Gabuogi and Madang Provincial Education Board (2013) N5446

National Court: Cannings J

Judgment Delivered: 14 December 2013

N5446

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 303 OF 2013

THE BOARD OF MANAGEMENT,

HOLY SPIRIT PRIMARY SCHOOL

Plaintiff

V

MOSES SARIKI, DIRECTOR,

MADANG PROVINCIAL EDUCATION OFFICE

First Defendant

MOSES GABUOGI

Second Defendant

MADANG PROVINCIAL EDUCATION BOARD

Third Defendant

Madang: Cannings J

2013: 30 September, 25 October, 8, 11, 15 November,

14 December

EDUCATION – role of Board of Management of primary school – roles of Provincial Education Board, Teaching Service Commission – challenges to teacher appointments.

The second defendant had been the Head Teacher of a primary school for a number of years and at the end of 2012 made it known that in 2013 he would be retiring. In February 2013 the Provincial Education Board appointed someone else to the position of head teacher and appointed the second defendant, who by then had changed his mind about retirement, to a teaching position at another school, which was lower in classification than the position he held at the primary school. The second defendant appealed against the Provincial Education Board’s decision to the Teaching Service Commission, which upheld the appeal and directed the Provincial Education Board to retain him as Head Teacher at the primary school. The Provincial Education Board implemented the Teaching Service Commission’s decision and reinstated the second defendant as Head Teacher. The Board of Management of the school was aggrieved by the Provincial Education Board’s decision and argued that the person originally appointed by the Provincial Education Board should be the head teacher. The Board of Management’s view was that the second defendant had announced at the end of 2012 that he would be retiring in 2013 and that he had been at the school a long time (too long), that his management of the school was no longer of a high standard, that the person originally appointed by the Provincial Education Board to replace him had the confidence of the Board of Management, that confusion amongst the teaching staff had impaired the educational welfare of the students and that the second defendant had reached the statutory retirement age of 60. The Board of Management commenced proceedings in the National Court, seeking declarations and orders that the third defendant’s decision to accept the decision of the Teaching Services Commission was wrong in law. The defendants raised some preliminary issues, viz that (a) the plaintiff has no standing to bring these proceedings as it is not a legal entity; (b) the Teaching Service Commission, whose decision is being challenged, has not been joined as a party, therefore this case should be dismissed; (c) the proceedings should have been initiated by originating summons under Order 16 of the National Court Rules, not by originating summons under Order 4.

Held:

(1) The Board of Management of a school is an entity capable of commencing legal proceedings that concern the management and control of the school, including teacher appointments.

(2) It was desirable but not necessary for the Teaching Service Commission to be a party to these proceedings.

(3) It was desirable, but not necessary, for the plaintiff to have commenced these proceedings under Order 16 of the National Court Rules.

(4) It is not the business of the National Court to hear argument about the merits of particular teacher appointments.

(5) The plaintiff failed to prove that the decision-making process, which culminated in the reappointment of the second defendant, was affected by any error of law.

(6) In particular the plaintiff failed to prove that the second defendant had reached the statutory age of retirement.

(7) All relief sought by the plaintiff was refused.

Cases cited

The following cases are cited in the judgment:

Galem Falide v Registrar of Titles and The State (2012) N4775

Shaw v Commonwealth of Australia [1963] PNGLR 119

Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

Telikom PNG Ltd v ICCC (2008) SC906

The State v James Yali (2005) N3014

Tony Waterupu Aimo v Ezekiel Anisi (2012) N4870

Young Wadau, Chairman of the Board of Governors, Tusbab Secondary School v Rose August, Acting Chairman, Teaching Service Commission (2009) N3614

ORIGINATING SUMMONS

This was an application for declarations and orders regarding a teaching position at a school.

Counsel

T M Ilaisa, for the plaintiff

G Haumu, for the defendants

14th December, 2013

1. CANNINGS J: A controversy has occurred during 2013 concerning the position of Head Teacher at Holy Spirit Primary School, Madang. The second defendant Moses Gabuogi is a long-serving teacher by profession and he has been the Head Teacher (Headmaster) at Holy Spirit for a number of years and at the end of 2012 made it known that in 2013 he would be retiring.

2. In February 2013 the Madang Provincial Education Board appointed someone else, Severinus Kelly, to the position of Head Teacher at Holy Spirit, and appointed Mr Gabuogi – who by then had changed his mind about retirement – to a teaching position at another school, Jomba Primary School, which was at a lower classification than the position he held at Holy Spirit.

3. Mr Gabuogi appealed against the Board’s decision to the Teaching Service Commission which on 20 March 2013 upheld the appeal and directed the Provincial Education Board to retain him as Head Teacher at Holy Spirit. The Provincial Education Board implemented the Teaching Service Commission’s decision and reinstated Mr Gabuogi as Head Teacher.

4. The Board of Management of the school is aggrieved by the Provincial Education Board’s decision and argues that Mr Kelly should be the Head Teacher. The Board of Management’s position is that Mr Gabuogi had announced at the end of 2012 that he would be retiring in 2013, that he had been at the school a long time (too long), that his management of the school was no longer of a high standard, that the person (Mr Kelly) appointed by the Provincial Education Board to replace him had the confidence of the Board of Management, that confusion amongst the teaching staff had impaired the educational welfare of the students and most importantly, that Mr Gabuogi had reached the statutory retirement age of 60.

5. The Board of Management commenced proceedings in the National Court, seeking declarations and orders that the decision of the Provincial Education Board to accept the decision of the Teaching Service Commission was wrong in law and is null and void and that Mr Gabuogi be “statutorily retired”. The defendants raised some preliminary issues, viz that (a) the plaintiff has no standing to bring this proceedings as it is not a legal entity; (b) the Teaching Service Commission, whose decision is being challenged, has not been joined as a party, therefore this case should be dismissed; (c) the proceedings should have been initiated by originating summons under Order 16 of the National Court Rules, not by originating summons under Order 4.

ISSUES

6. Four major issues have emerged:

1 Do the preliminary issues raised by the defendants warrant dismissal of the proceedings?

2 Does the Court have jurisdiction to consider the merits of the decision regarding the appointment of the Head Teacher?

3 Has the plaintiff proven any error of law in the decision making process?

4 Has Mr Gabuogi reached the statutory retirement age?

1 DO THE PRELIMINARY ISSUES RAISED BY THE DEFENDANTS WARRANT DISMISSAL OF THE PROCEEDINGS?

(a) Does the plaintiff have standing?

7. Boards of Management of primary schools are established under the Education Act 1983. They have a wide range of important functions prescribed by Section 62 (functions of boards of management), which states:

Subject to this Act, a Board of Management is immediately responsible within the limits of funds and other resources available to it—

(a) for the planning for, and the provision and maintenance of, school buildings, teachers' houses and ancillary facilities as required; and

(b) for ensuring the availability of adequate housing for teachers; and

(c) for the enrolment of pupils; and

(d) within the general framework of policy established under this Act and the philosophy of the education agency conducting the pre-school, community school, elementary school, primary school or vocational centre—

(i) for determining the aims and goals of that school or centre; and

(ii) for supervising the achievement of those aims and goals; and

(e) for the making of rules for the discipline of students including the punishment by suspension, expulsion or the provision of work or services; and

(f) for the suspension or expulsion of students for breaches of rules made in accordance with Paragraph (e);...