Young Wadau, Chairman of The Board of Governors, Tusbab Secondary School v Rose August, Acting Chairman, Teaching Service Commission and The Independent State of Papua New Guinea and George Irum and Moses Sariki, Acting Education Adviser, Education Branch, Madang (2009) N3614

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 01 May 2009
• Court: National Court
• Citation: (2009) N3614
• Docket Number: OS NO 37 OF 2009
• Year: 2009
• Judgement Number: N3614

Full Title: OS NO 37 OF 2009; Young Wadau, Chairman of The Board of Governors, Tusbab Secondary School v Rose August, Acting Chairman, Teaching Service Commission and The Independent State of Papua New Guinea and George Irum and Moses Sariki, Acting Education Adviser, Education Branch, Madang (2009) N3614

National Court: Cannings J

Judgment Delivered: 1 May 2009

N3614

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 37 OF 2009

YOUNG WADAU, CHAIRMAN OF THE BOARD OF GOVERNORS,

TUSBAB SECONDARY SCHOOL

Plaintiff

V

ROSE AUGUST, ACTING CHAIRMAN,

TEACHING SERVICE COMMISSION

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

GEORGE IRUM

Third Defendant

MOSES SARIKI, ACTING EDUCATION ADVISER,

EDUCATION BRANCH, MADANG

Fourth Defendant

Cannings J

Madang: 2009: 9 April

Waigani: 2009: 1 May

JUDGMENT

STATUTES – interpretation – general provision conferring power on one body to give directions to another; specific provision conferring power on another body – Education Act 1983, Sections 151 and 39 – powers, functions, duties and responsibilities of education authorities in the National Education System – relationship between Teaching Service Commission and a Provincial Education Board.

A dispute arose over the position of principal of a secondary school. A number of allegations were made against the incumbent principal (the third defendant) in 2006 and he was suspended. However, no charges were laid against him. His suspension was uplifted in early 2008 and he was offered a junior position at another school, which he declined. In the meantime another person was appointed as principal by the Provincial Education Board, on the recommendation of the board of governors of the school. The third defendant felt that he was unfairly treated and complained to the Teaching Service Commission, which considered the matter and directed the Provincial Education Board to reinstate him. That direction was not complied with. Proceedings have been commenced by the chairman of the school’s board of governors (the plaintiff) seeking declarations that, amongst other things, the Teaching Service Commission’s direction is unlawful. At the trial the third defendant argued that the plaintiff lacked standing to commence the proceedings, so a ruling on that issue has been given at the beginning of the judgment.

Held:

(1) The plaintiff is a citizen who has approached the court with good intentions and as chairman of the board of governors he has a particular interest in the question of who is appointed as principal. There is a direct connection between his functions as chairman and such an appointment. He has exhausted his administrative remedies. Thus he was granted standing.

(2) The appointment of the second principal was properly and lawfully made by the Provincial Education Board.

(3) The Teaching Service Commission’s direction to the Provincial Education Board was not authorised by Section 151(1) of the Teaching Service Act and was unlawful.

(4) The third defendant has been dealt with unfairly, but this did not give him a right, or make it just and appropriate for him, to be reinstated.

(5) The second principal should be the principal for the school year 2009.

(6) Declarations and orders made accordingly.

Cases cited

The following cases are cited in the judgment:

Dademo v Angoro, Oro Provincial Education Board and Others (2007) N3235

Opa & Mount Hagen Park Secondary School v Gima, Chairman of Western Highlands Provincial Education Board & Ors (2008) N3343

Re Election of Governor-General (No 1) (2003) SC721

SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265

Counsel

Y Wadau, the plaintiff, in person

B Meten, for the third defendant

1. CANNINGS J: A dispute has arisen over who should be the principal of Tusbab Secondary School, in Madang. Should it be Mr George Irum, the third defendant, who held the position until he was suspended in June 2006, whose suspension was uplifted in 2008 and who says he is entitled to be reinstated? Or should it be Mrs Margaret Valakvi, who has occupied the position since January 2007 and who has the support of the school’s Board of Governors?

2. The Madang Provincial Education Board says that it should be Mrs Valakvi. At a meeting on 13 January 2009, they appointed her to the position of principal for the school year 2009. They made that decision in accordance with a recommendation from the Board of Governors of Tusbab Secondary School, who support Mrs Valakvi and do not want to see Mr Irum reinstated.

3. The Teaching Service Commission has a different view. They consider that Mr Irum should be the principal. They have nothing against Mrs Valakvi, but consider that Mr Irum has not been dealt with properly by the education authorities. He was suspended as principal of Tusbab Secondary School in 2006 and his suspension was not uplifted until 20 months later. No charges were ever laid against him. Then he was offered a junior position at another school, which amounted to a demotion, and he declined to accept that offer. The Commission’s view is that he deserves to be reinstated and they have given a direction to the Provincial Education Board to reinstate him.

4. The dispute has been brought to court by the chairman of the Board of Governors, Mr Young Wadau, the plaintiff, who seeks a number of declarations, including that the Commission’s direction to the Provincial Education Board is unlawful.

5. The trial was held at Madang and Mr Wadau represented himself. Mr Burnie Meten of Narokobi Lawyers represented Mr Irum. Other defendants were not represented but Mr Wadau and Mr Meten assured me that they knew about the trial and had been given a proper opportunity to appear.

ISSUES

6. Mr Meten took issue with Mr Wadau’s standing in the matter, so that is the first issue to address. If decided against Mr Wadau, that will be the end of his case. But if decided in his favour, other issues will arise about the respective powers of the Provincial Education Board and the Teaching Service Commission. The court must also consider the interests of Mr Irum, who claims to have been dealt with unfairly, and, of course, the interests of Mrs Valakvi. She has not been made a party to the proceedings and nothing adverse about her appears in the evidence but clearly she has an interest in the outcome. As do, of course, the students of Tusbab Secondary School. Their interests must also be considered in deciding on what declarations or other remedies the court should grant.

7. I will address the issues in this sequence:

1 Does Mr Wadau have standing to commence these proceedings? And, if he does:

2 Was Mrs Valakvi’s appointment properly made by the Provincial Education Board?

3 Was the Teaching Service Commission’s direction to reinstate Mr Irum lawful?

4 Has Mr Irum been properly dealt with? If not, should he be reinstated?

5 Who should be the principal of Tusbab Secondary School?

6 What other declarations or orders should the Court make?

1 DOES MR WADAU HAVE STANDING TO COMMENCE THESE PROCEEDINGS?

8. Mr Meten submitted that it is not clear whether Mr Wadau commenced the proceedings personally, in his capacity as chairman of the Board of Governors, or whether he commenced the proceedings on behalf of the Board of Governors who authorised him to commence the proceedings. Whatever the case, he submits, Mr Wadau lacks locus standi (sufficient, legally recognisable interest) and the proceedings should be dismissed. Mr Meten points to the provisions of the Education Act that provide for the establishment of boards of governors for secondary schools (Section 65) and for appointment to boards (Sections 66 and 67) and for their powers and functions (Sections 68 and 69). He also relies on Section 85, which, he argues, confers on the Teaching Service Commission the power to appoint teachers by stating:

Except as is specifically provided by or under this Act or any other law relating to education matters, no education authority other than the Teaching Service Commission has any powers in relation to the appointment, promotion, transfer, discipline, suspension, dismissal or conditions of service of teachers generally or of individual teachers in the Teaching Service.

9. Mr Meten submits that these provisions limit the powers and functions of a board of governors to the matters expressly set out in Section 68. Things like planning for school buildings, accounting for money made available to the school, enrolment of students, making of rules for the discipline of students and determining the aims and goals of the school. The Act does not give a board of governors the power to appoint teachers or to question decisions of the Teaching Service Commission regarding the appointment of teachers.

In what capacity did Mr Wadau commence these proceedings?

10. It is clear that he commenced them in his individual capacity as Chairman of the Board of Governors of Tusbab Secondary School, not on behalf of the Board of Governors. On the originating summons he describes himself as the Chairman of the Board of Governors. He does not say ‘for and on behalf of the Board of Governors’ or anything else to suggest that he acts in a representative capacity. So the question is whether someone who is the chairman of a board of governors has a sufficient and legitimate interest in the appointment of teachers to...