Bruno Saiho v Anna Solomon

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 07 October 2016
• Citation: (2016) N6474
• Court: National Court
• Year: 2016
• Judgement Number: N6474

Full : WS No 494 of 2013; Bruno Saiho v Anna Solomon, Acting Secretary – Department of Community Development and Department of Community Development and the Independent State of Papua New Guinea (2016) N6474

National Court: Anis AJ

Judgment Delivered: 7 October 2016

N6474

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 494 OF 2013

BETWEEN:

BRUNO SAIHO

- Plaintiff -

AND:

ANNA SOLOMON

ACTING SECRTARY – DEPARTMENT OF COMMUNITY DEVELOPMENT

- First Defendant -

AND:

DEPARTMENT OF COMMUNITY DEVELOPMENT

- Second Defendant -

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

- Third Defendant -

Kokopo: Anis AJ

2016: 16th June & 7th October

EMPLOYMENT LAW – public servant - written contract - breach of contract and constitutional rights - whether private law or public law apply - tests to apply by the court to determine whether private or public law should apply discussed - effect of section 18(6)(b) of the Public Services (Management) Act discussed

Facts

The plaintiff signed a contract of employment with the defendants for three (3) years. Before his term was up, he signed a new contract of employment for another three (3) years. During the term of his employment under the second contract, he was suspended and then terminated. The plaintiff sought review before the Public Service Commission. The Public Service Commission annulled the defendants' decision to terminate him and he was re-instated to his substantive position. Not long and whilst waiting to be re-instated, the plaintiff was put off from the payroll. The plaintiff lodged another review with the Public Service Commission. Whilst waiting for the review, the plaintiff commenced this proceeding. Whilst this proceeding was pending, the Public Service Commission annulled the defendants' decision to suspend the plaintiff and ordered his reinstatement with all this outstanding entitlements to be paid. The plaintiff resumed employment with the defendants. He was later transferred to and is now working with another department of the third defendant. The plaintiff continued with this proceeding. He also claims that his outstanding entitlements are still owed to him.

Held

1. To determine whether public or private law applies to a public servant's written contract, one must firstly treat it like a normal contract and interpret the express terms of the contract. (case referred to: Tom Gesa v. Bernard Kipit (2003) N2457).

2. When interpreting a contract to determine whether public or private law shall apply, the Court should apply the three (3) tests set out in the Supreme Court case of Joel Luma v. John Kali (2014) SC1401, namely:

(i) The Court must look at the process of appointment and revocation.

(ii) The subject action or decision must be of public importance and interest. It must be a subject of an exercise of power.

(iii) If the employing agency is not created under a statute but is incorporated under the Companies Act 1997, the termination is of a private law nature and the remedy of judicial review is not available to the aggrieved party.

3. If a decision of the Public Service Commission made under section 18(5)(b) of the Public Services (Management) Act is not effected within 30 days from the date it is made, an aggrieved party need not file a judicial review proceeding. Instead, he or she could file an originating summons under Order 4 of the National Court Rules to seek enforcement (case referred to: Gabriel Yer v. Peter Yama (2009) SC996).

4. The plaintiff's contract of employment was subject to public law and not private law, which meant that his cause of action could not be sustained and was dismissed.

Cases cited

Ambrose Vakina v. Thaddeus Kambanei (2004) N3094

David Nelson v. Patrick Puraitch (2004) N2536

Ereman Ragi v. Joseph Maingu (1994) SC459

Gabriel Yer v. Peter Yama (2009) SC996

Joel Luma v. John Kali (2014) SC1401

Jomino Holee, Paula Vuvu and Gauealele Samuel v. Sem Vegogo, Pascoe Kase & the State (2013) N5101

Tom Gesa v. Bernard Kipit (2003) N2457

Zachary Gelu v. Francis Damen (2004) N2762

Counsel

Mr B Lai, for the Plaintiff

Ms E Takaboi, for the Defendants

JUDGMENT

7th October, 2016

1 ANIS AJ: The plaintiff is a public servant. He currently works with the Department of Provincial and Local Level Government Affairs. Prior to that, the plaintiff was employed by the Department of Community Development (2nd defendant).

2. The cause of action relates to his earlier employment with the 2nd defendant. The plaintiff alleges that at the material time, he was legally employed by the 2nd defendant under a written contract and that he was unlawfully terminated by the defendants. The plaintiff seeks damages. The plaintiff also alleges events, during the time when he was challenging his termination or suspension, and claims his various constitutional rights were infringed and he seeks compensation for that.

TRIAL

3. The trial commenced on 16 June 2016. The plaintiff tendered his evidence without objections from the defendants. He tendered nine (9) affidavits.

4. The defendants tendered one (1) affidavit, which is the Affidavit of the Anna Solomon (1st defendant). The plaintiff objected. I over-ruled the objection. I held that the objections relate to alleged defects in the affidavit and concern the principle of hearsay evidence. I said these were matters, which should be for submission and that it should not prevent the defendants from tendering their evidence. The Court then accepted the evidence.

5. In the plaintiff's written submission filed after the trial on 1st of July 2016, he said the 1st defendant did not sign at pages 2 and 3 of her affidavit. As such, he objected strenuously to the use of the affidavit. This fact is correct. But I also note that the 1st defendant did sign at the last page of her affidavit and that it was duly witnessed by a Commissioner for Oaths. This is not an uncommon error or over-sight when dealing with affidavit evidence. I consider this as a minor defect. It is actually the duty of the Commissioner for Oaths officer to ensure that the affidavit was properly administered. The error is minor and I overrule the objection. Of course, the evidence, like the others, will be considered in my judgement and I will have to decide in the end how much weight I should give or not give to it. That is a matter of discretion. That includes addressing the issue of hearsay evidence.

6. Each affidavit was marked as an exhibit. Let me set them out here in a table format:

Exhibit No.	Description	Date
“P1”	Affidavit of Bruno Saiho, sworn & filed	24/5/13
“P2”	Affidavit of Louise Kinginapi, sworn & filed	24/5/13
“P3”	Affidavit of Brian Nakrakundi, sworn & filed	24/5/13
“P4”	Affidavit of Carol Saiho, sworn & filed	24/5/13
“P5”	Affidavit of Kori Dingu, sworn & filed	24/5/13
“P6”	Affidavit of Marcus Yoko, sworn & filed	24/5/13
“P7”	Affidavit of Felix Kinginapi, sworn & filed	24/5/13
“P8”	Affidavit of Bruno Saiho, sworn & filed	21/10/13
“P9”	Affidavit of Bruno Saiho, sworn & filed	18/5/15
“P10”	Affidavit of Itu Boeagavi, sworn & filed	03/8/15
“D1”	Affidavit of Anna Solomon, sworn & filed	08/6/16

7. The parties have agreed not to cross-examine their witnesses.

8. At the end of the trial, the Court asked counsel whether a different date should be set for the parties to file and present their written submissions to the Court. Counsel chose not to have a second hearing but instead an order for them to file written submissions.

9. The Court issued orders to that effect. I note that both parties have filed their written submissions, the plaintiff on 1 July 2016 and the defendants on 30 June 2016.

ISSUES

10. I will address the issues as identified by the parties. They are:

(i) Whether the plaintiff was unlawfully terminated?

(ii) If yes, whether the findings and determination of the Public Service Commission of 27th August 2012 reinstating the Plaintiff with all his salaries and entitlements restored is binding and enforceable on the Defendants after 30 days pursuant to section 18 of the Public Service (Management) Act 1995 (as amended);

(iii) Is the plaintiff's contract of employment void ab initio as alleged by the defendants for want of compliance with General Order 9 and 10 of the Public Service Regulations?

(iv) If the plaintiff was unlawfully terminated and then reinstated by the Public Service Commission in accordance with law than what entitlements is he entitled to?

(v) Is the Plaintiff entitled to the relief, damages for breach of his constitutional rights as claimed and particularised under paragraph 72 of the statement of claim?

CONTRACT - PUBLIC OR PRIVATE?

11. The plaintiff says he signed a valid contract of employment with the defendants on 21 March 2011 (the contract). Obviously, the Court must firstly be satisfied that the contract was valid. I note that the defendants, in their defence, deny the validity of the contract.

12. The contract is marked as Annexure G to Exhibit P1. The document appeared duly signed by the parties. However, I do not think that is the real issue.

13. The real issue under this heading, in my opinion, is whether the contract is a...