Benard Lomon v Jeffery Vaki

• Jurisdiction: Papua New Guinea
• Judge: Toliken J
• Judgment Date: 14 March 2016
• Citation: (2016) N6423
• Court: National Court
• Year: 2016
• Judgement Number: N6423

Full : OS (JR) No 883 of 2014; Benard Lomon v Jeffery Vaki and Royal Papua New Guinea Constabulary and the Independent State of Papua New Guinea (2016) N6423

National Court: Toliken J

Judgment Delivered: 14 March 2016

N6423

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 883 OF 2014

BETWEEN

BENARD LOMON

(Plaintiff)

AND

JEFFERY VAKI

(First Defendant)

AND

ROYAL PAPUA NEW GUINEA CONSTABULARY

(Second Defendant)

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

(Third Defendant)

Popondetta: Toliken J.

2015: 20th November

2016: 14th March

JUDICIAL REVIEW – Application for Review – Review of dismissal of policeman – Grounds of review – Ultra vires – Power to suspend member for disciplinary or criminal charge – Vested in Commissioner for Police – Commissioner has power to delegate – Whether power delegated – Ex parte proceedings – Plaintiff is to provide some evidence to substantiate his allegation on the balance of probabilities – Police Act 1998, ss 17, 28(1), 32(1).

JUDICIAL REVIEW – Procedural and Substantive Ultra Vires – Disciplinary of procedures under Police Act – Appointment of Disciplinary Officer mandatory – No evidence of appointment of Disciplinary Officer – Dismissal appears to be based on Criminal Investigation officer’s investigation report – No evidence that criminal investigator was appointed as Disciplinary officer to investigate Plaintiffs disciplinary offences – No evidence that officer who issued Notice of Penalty for Dismissal was delegated such powers by the Commissioner - Assumption of power to dismiss Plaintiff in absence of proper delegation is unlawful and ultra vires the powers of the Commissioner – Police Act 1998, s 25.

JUDICIAL REVIEW – Unreasonableness – Powers of Commissioner where member suspended for criminal charge under Section 32 of Police Act –Plaintiff dismissed from Constabulary before criminal charge is finalised – Whether Commissioner acted unreasonably when he confirmed dismissal on review instead of waiting for outcome of criminal charge – Commissioner has power to direct stay of execution of a penalty including dismissal – Whether failure to exercise power to stay execution of penalty of dismissal where a member’s criminal case is still pending is unreasonable - Commissioner obliged by Section 32 (3) to lift the suspension of a member who is acquitted of the criminal charge which led to suspension – No utility if members charged with criminal offences are dismissed from the force before their criminal charges are dealt with by an appropriate court – Commissioner acted unreasonably – Orders for reinstatement granted - Police Act, ss 26 (8), 32(3).

Cases Cited:

Kekedo –v- Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Peter Bon –v- Mark Nagkai (2001) N2123

Steven Nining –v- Dr. Nicholas Mann (2013) N5338

Wawia –v- Inguba (2013) N5232

Counsel:

L.B. Mamu, for the Plaintiff

No appearance for the Defendants

JUDGMENT

14th March, 2016

1. TOLIKEN J: The Plaintiff seeks the review the decision of the First Defendant dismissing him from the Royal Papua New Guinea Constabulary (Constabulary). I granted leave on the 20th of November 2015. The defendants were all duly served. They did not appear when the application for leave was heard and the matter proceeded ex parte. Leave was also granted for the substantive hearing to proceed ex parte since the defendants obviously had shown no interest in defending their actions.

2. The Plaintiff seeks the following reliefs by way of Originating Summons filed on 12th December 2014.

1. An order in the nature of certiorari to remove to this court and quash the decision of the First Defendant in removing the Plaintiff from his positions as Senior Constable; and

2. An order in the nature of mandamus requiring the First Defendant to reinstate the Plaintiff to his [substantive] position as Senior Constable; and

3. An order in the Nature of mandamus requiring the First Defendant to pay “back pay” and other emoluments lost by being unlawfully removed from the date of removal to date of reinstalment; and

4. Damages for mental distress and anxiety and public humiliation suffered by the Plaintiff and his family after being removed; and

5. Costs of this application; and

6. Such further or other orders as this Honourable Court deems fit.

3. The grounds for the review are –

I. Ultra Vires: Breach of procedure/Procedural Ultra vires

(a) That the suspension of the Plaintiff by Chief Superintendent Victor Isouve (PPC Oro) pursuant to Section 28 (1) and Section 32 (1) of the Police Act 1998 (the Act) amounts to ultra vires, since this provisions vests suspension powers on the Commissioner for Police.

(b) The dismissal of the Plaintiff by Deputy Commissioner Mr. A. Sete pursuant to Section 26 (1) (a) of the Act amounts to ultra vires since the power to dismiss is vested on the Commissioner for Police by Section 25 (2) Act.

(c) The investigations carried out by persons other than a Section 24 (1) Disciplinary Officer amount to ultra vires.

(d) The dismissal amounts to procedural ultra vires considering the fact that the Plaintiff was suspended under Section 28 (1) (relating to disciplinary offence) and Section 32 (1) (criminal offence) and when looking at Section 33 of the Act the next stage of involving dismissal penalty is made subject to the outcome of the criminal proceedings, therefore, such imposition of the dismissal is premature and amounts to procedural ultra vires.

II: Error of Law.

(a) The exercise of power to suspend and or dismiss by persons other than the Commissioner amounts to an error of law since it is the Commissioner that is specifically empowered to suspend or dismiss an officer

(b) There was no disciplinary officer appointed by the Commissioner for Police under Section 24 (1) of the Act to investigate the matter and no report was given to the Commissioner for Police. This amounts to an error of law since it is a mandatory provision.

(c) Alternatively, any appointment of a disciplinary officer by persons other than the Commissioner for Police amounts to an error of law since Section 24 (1) is a mandatory requirement for such appointment to be made by the Commissioner.

(d) The imposition of dismissal before the conclusion of proceedings since the suspension was made under both Sections 28 and 32 of the Act.

III: Natural Justice (Breach of)

(a) The dismissal is unfair because the matter directly relates to the criminal proceedings which is yet to be concluded and in fairness should be put on halt pending the determination of criminal liability taking into account the entire circumstances of the case.

(b) Such a dismissal before the conclusion of criminal proceedings is unfair and unjust when the criminal proceedings is still on when the Suspension Notice makes it clear that the disciplinary proceedings stemmed from or related directly to the criminal actions.

IV: Unreasonableness/Wednesbury Principle

(a) The imposition of the maximum penalty is grossly unreasonable because the failure to record the firearm and the negligence in looking after same equality falls on the O IC - CID and Police Station Commander. Here the plaintiff is treated as the sacrificial lamb that causes the blame of everyone involved.

(b) The quick and haste move to remove and to dismiss the plaintiff from the Force when his criminal proceeding is yet to be concluded is unreasonable.

THE BACKGROUND FACTS

4. Prior to his dismissal the Plaintiff was attached to the Popondetta Police Station. He held the rank of Senior Constable and had served the Constabulary for 21 years.

5. The Plaintiff was charged, on the 26th of March 2013, by Chief Superintendant Victor Isouve, the then Provincial Police Commander (PPC) of Oro Province with four disciplinary offences under Section 20 of Police Act. These were that:

(1) He knowingly failed to disclose the existence of the firearm CHR 23 Gauge Shotgun Serial No. HH429725 (section 20 (1) (2))

(2) Knowingly omit to record the description of the firearm (Section 20 (1) (2))

(3) Improperly deal with the property (Section 20 (1) (a))

(4) Did act in a manner that reflected discredit to the Force (Section 20 (1) (az))

6. On 27th of March 2013 the Plaintiff was called into the Popondetta Police Station by Inspector Charles L. Winuan. He was interviewed and charged for stealing a firearm contrary to Section 372 (6) (b) of the Criminal Code Ch. 262(the Code). He was detained and released on K300.00 bail.

7. On the same day he was suspended by Chief Superintendant Isouve pursuant to Section 28 (1) of the Act (Suspension on disciplinary or suspected disciplinary offence) and Section 32 (1) of the Act (Suspension where member is charged with criminal offence).

8. Inspector Winuan served the Plaintiff his 4 disciplinary charges and his suspension notices on the same day.

9. On 28th of March 2013 Inspector Winuan laid information in the District Court for the charge of Stealing under the Code.

10. On 10th April 2013, pursuant to Section 23 (3) of the Act the Plaintiff replied to the...