Richard Koki v Sam Inguba and The Independent State of Papua New Guinea (2009) N3785

• Jurisdiction: Papua New Guinea
• Judge: Yalo, AJ
• Judgment Date: 16 November 2009
• Court: National Court
• Citation: (2009) N3785
• Docket Number: OS NO 320 OF 2006
• Year: 2009
• Judgement Number: N3785

Full Title: OS NO 320 OF 2006; Richard Koki v Sam Inguba and The Independent State of Papua New Guinea (2009) N3785

National Court: Yalo, AJ

Judgment Delivered: 16 November 2009

N3785

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 320 OF 2006

BETWEEN

RICHARD KOKI

Plaintiff

AND

SAM INGUBA

First defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Wabag: Yalo, AJ

2008: 20 June, 20 August,

2009: 16 November

CIVIL PRACTICE – Judicial Review – Order 16 rules 3 – 5 of the National Court Rules – substantive judicial review application following grant of leave – Grounds of review – procedural irregularities – non compliance with procedures prescribed by Police Act. Proper Grounds of review – excess of jurisdiction, error of law, breach of natural justice, unreasonableness.

PROCEDURE – Judicial Review involves the reviewing of the decision-making process of the decision-maker – the reviewing court is not a court of appeal.

JUDICIAL REVIEW – Principles of natural justice – Section 59 Constitution – “minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly”. Obligation to observe principles of natural justice - imposed by the Constitution, Police Act (statute) and the underlying law, Schedule 2.2 Constitution.

Held:

1. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process. The reviewing court is not a court of appeal: Kekedo v Burns Philip & Ors [1988-89] PNGLR 122 and Associated Provincial Pictures House Ltd v Wednesbury Corporation [1948] 1KB 223; [1947] 2 ALL ER 680 followed.

2. Where administrative authorities exercise administrative powers which may affect others they are obliged to observe the rules of natural justice. Such obligation in our jurisdiction is an onerous one. It is onerous because it is not just a requirement of the common law which we have adopted as our underlying law under Schedule 2.2 of the Constitution. The principles of natural justice developed under the underlying law are subject to the principles of natural justice entrenched both in our Constitution and our statutes, so says Section 59(1) Constitution. .. Our Constitution, the higher law imposes the obligation.

3. Section 59 sets the minimum requirement of the principles of natural justice. That minimum requirement is the duty to act fairly and, in principle, to be seen to act fairly.

4. It is quite unique in our jurisdiction as to how we have valued and recognized the importance of fairness or the principles of natural justice. Firstly, we have adopted the common law principles of natural justice as our underlying law. Secondly, the principles of natural justice are ensured all throughout our statutes. As if these were inadequate we have provided for it in our Constitution at Section 59. Above all these, the Constitution has laid down the minimum standard of the principles of natural justice. We have provided for fairness at all levels of the hierarchy of laws in our jurisdiction. So there is an onerous obligation to observe the minimum standard of the principles of natural justice.

Cases Cited

Papua New Guinea Cases

Kekedo v Burns Philip & Ors [1988-89] PNGLR 122

Chan v Ombudsman Commission [1998] PNGLR 171

Ombudsman Commission v Yama (2004) SC747

Overseas Cases

Associated Provincial Pictures House Ltd v Wednesbury Corporation [1948] 1KB 223; [1947] 2 ALL ER 680

Cases referred to

John Mua Nilkare v Ombudsman Commission (1995) N1344

John Magaidimo v Commissioner of Police (2004) N2752

Sudi Yaku v Commissioner of Police, Ex parte The State [1980] PNGLR 27

OS No 542 of 2006 Wesley Gau v Sam Inguba and The Independent State of Papua New Guinea (02.07.08) (Unnumbered)(Unreported)

Counsel

Mr Russell Uware, for the Plaintiff

Ms Jacinta Doa, for the Defendants

16 November, 2009

1 YALO, AJ: This is an application under Order 16 rule 5 of the National Court Rules (NCR). The plaintiff, Mr Richard Koki sought orders in the nature of certiorari to quash the administrative disciplinary penalties of the first defendant demoting him by two ranks. Mr Koki was an Inspector in the Royal Papua New Guinea Constabulary (RPNGC) when he was demoted through administrative disciplinary process. Mr Koki was demoted to Chief Sergeant and later to Senior Sergeant. Mr Koki sought and was granted leave of this Court on 20 August 2008 to apply for judicial review of his demotions. The substantive application was moved on 2 June 2009. This is the ruling on that application.

2 The plaintiff seeks the following remedies in this substantive application:

(a) A declaration that demotion in relation to the first charge, whereby he was demoted to Chief Sergeant at salary point F081, and in relation to the second charge whereby he was demoted to Senior Sergeant on salary point F071, imposed by the first defendant is unlawful, null and void, and of no effect.

(b) An Order in the nature of certiorari to bring into this Honourable Court, charges by way of two (2) Serious Disciplinary Offence Report (SDORs) dated 10 December 2001 and be quashed.

(c) An Order in the nature of certiorari to bring into this Honourable Court, notice of penalty served on 24 June 2003 and be quashed.

(d) An Order in that the Plaintiff be reinstated to his former position of Inspector with all his entitlements backdated to the date of the demotion.

(e) The first defendant meet the costs of the application.

3 The plaintiff relied on the following grounds in support of his application.

(a) Breach of the principles of natural justice. The plaintiff’s response to the charges were not considered by the first defendant in finally determining the charges because they were never brought to the latter’s attention.

(b) Disciplinary officer not appointed. There is no evidence that a disciplinary officer was appointed as required under Section 24 of the Police Act to investigate the complaint against the plaintiff. Therefore the first defendant did not have an investigative report before him from the disciplinary officer to determine the complaint and impose penalties.

(c) No disciplinary report. See (b) above.

(d) The plaintiff was demoted without complying with Section 24 of the Police Act.

(e) Unreasonableness of notice of penalty. The penalty was so harsh and did not fit the nature of the complaint and charges.

PLAINTIFF’S SUBMISSIONS

4 Mr Koki relied on his application filed on 26 August 2008 and the originating process and affidavit in support all filed on 5 May 2006. He further relied on his supplementary affidavit filed on 25 October 2006 and another filed on 22 June 2009. His counsel relied on written submissions to make the application. The following facts deposed to in the affidavit in support and restated in his written submissions are relevant. Mr Koki was a part of the first batch of direct entry cadets in 1993. He was made a commissioned officer in 1995. After passing out of the Bomana Police College he was an Instructor from the end of 1995 to 1997. At the end of 1997 he was posted to the Highlands Region attached to the Mobile Group as a Squad Commander. He was eventually promoted to the rank of Acting Highlands Mobile Group Commander. In 1998 Mr Koki served on Bougainville commanding a police mobile squad. At the time he was alleged to have committed the offence for which he was disciplined he was serving as the Acting Police Station Commander (PSC) at Wabag Police Station. On the relevant day he was tasked by the PPC to take stock of properties belonging to the Enga Provincial Government which had been rented for police units to occupy.

5 On or about 3 September 2001 Mr Koki received orders from the then Provincial Police Commander (PPC) Superintendent John Anawe to attend at a premise on Beat Street, Wabag Town. This property was rented to the police but was vacated leaving State assets in the house. Mr Koki was in the company of two of his colleagues, Constables Nelson Kalimda and Emmanuel Malken. When they arrived at the property they met Mr Mek Apakas who was taking care of the property and they explained that they were there to retrieve certain properties belonging to the State. Mr Apakas refused to cooperate. When Mr Koki and his team returned to the station to seek further instructions from the PPC, the latter ordered them to return to the premise and retrieve the State’s properties with reasonable force if necessary.

6 Mr Koki drove to the same premise to execute the orders but Mr Apakas protested and he threw stones at the team. A crowd that had gathered there got abusive and aggressive and Constable Kalimda fired a shot from a pump action shot gun to stop the crowd. The crowd dispersed and Constables Kalimda and Malken walked into the premise and retrieved the State’s properties they were ordered to retrieve. Mr Koki remained in the police vehicle. Mr Apakas continued to throw stones at the police vehicle and verbally assaulted them. This prompted the police constables to push Mr Apakas. Mr Koki reported the incident to the PPC but he did not have the report in writing. Mr Apakas reported to the police headquarters in Port Moresby that Mr Koki’s team had assaulted him.

7 An internal investigation...