William Lakain as the acting Managing Director of Climate Change & Development Authority v Senior Sergeant Andrew Wilfred as the Acting Regional OIC CID Southern Region and Others

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 26 May 2023
• Neutral Citation: N10270
• Citation: N10270, 2023-05-26
• Counsel: M Wangatau, for the Plaintiff,P Ohuma, for the First and Third Defendants,H Monei, for the Second Defendant
• Docket Number: OS NO. 41 OF 2023 (IECMS)
• Hearing Date: 04 May 2023,26 May 2023
• Court: National Court

N10270

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 41 OF 2023 (IECMS)

Between:

William Lakain as the acting Managing Director of Climate Change & Development Authority

Plaintiff

v.

Senior Sergeant Andrew Wilfred as the Acting Regional OIC CID Southern Region

First Defendant

and

Mr Alfred Rungol

Second Defendant

and

The Independent State of Papua New Guinea

Third Defendant

Waigani: Anis J

2023: 4 & 26 May

DECLARATORY & INJUCTIVE RELIEF — Substantive hearing — declaratory relief sought in official capacity — preliminary issue — whether plaintiff has capacity to sue — consideration — ruling on preliminary matter — remark — duty of police under law — policemen's role — whether they have business to interfere with or assist citizens on their personal or private matters — word of caution

Cases Cited:

Kenn Norae Mondiai v Wawoi Guavi Timbers Co. Ltd (2007) SC 886

Steamships Trading Limited v Garamut Enterprises Ltd (2000) N1959

Sampson v National Executive Council (2019) SC1880

Counsel:

M Wangatau, for the Plaintiff

P Ohuma, for the First and Third Defendants

H Monei, for the Second Defendant

Ace: Lawyers for the Plaintiff

Solicitor General: Lawyers for the First and Third Defendants

Valorem Attorneys: Lawyers for the Second Defendant

JUDGMENT

26^th May, 2023

1. Anis J: This matter was trialed on 4 May 2023. It was a contested hearing. Evidence were tendered by consent of the parties without the benefit of cross-examination. I reserved my decision thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The plaintiff ‘asserts’ that he is the Acting Managing Director of this public authority called Climate Change & Development Authority (the Authority). I used the term ‘asserts’ because the defendants have raised challenges to the plaintiff's position with the Authority and his capacity to commence this proceeding. I will address them as the first issue. But before I do so, and moving on with the background, the dispute that occurred that resulted in this proceeding is this. The second defendant used to be employed as the Authority's General Manager – MRV and NC division. On 6 June 2022, he was terminated based on recommendation by the Authority's Disciplinary Committee (DC). Complaints that were laid against him that led to recommendation for this termination included workspace bullying, fist fight with a junior staff member whilst under the influence of alcohol, and a drink drive incident whilst on duty travel to Manus which had resulted in a claim of K340,000 against the Authority.

4. According to the Authority, its decision to terminate was final because it was premised on a written contract that the Authority had signed with the second defendant. The Authority informed the second defendant that if he had any issues, that he should seek his redress from the Court.

5. The second defendant did not commence any legal proceedings to challenge his termination. Instead, he wrote to various heads of departments including laying complaints with the police fraud squad. He tried to negotiate his return to the Authority. The Authority rejected outright his demand for reinstatement. The Authority was later concerned when policemen were engaged or began to involve themselves in, what it claims, private affairs of the second defendant. The Authority claims that members of the police force who were armed, had visited the office of the Authority on various occasions to, amongst others, demand the return of the second defendant back to his position of employment with the Authority. The demands included a written letter dated 16 February 2023 by the first defendant to the plaintiff. Thus, the Authority, seeking to protect itself as a corporate person that is established under legislation, namely, Climate Change (Management) Act 2015 (Climate Change Act), and also in protecting its staff members from harassment and intimidation, filed this proceeding on 1 March 2023.

6. The main relief sought are as follows:

“1. A declaration that the decision of the Managing Director of the Climate Change and Development Authority relating termination of the second defendant through termination notice dated 6^th June 2022 shall be final and the second defendant may seek redress through the Courts in the event that the second defendant considers the disciplinary action to have been applied improperly or unfairly.

2. A declaration that interference by the first defendant or any police personnel or any third party in disciplinary matters carried out by the Office of the Climate Change & Development Authority is illegal.

3. A declaration that any actions taken against any party due to interference by the first defendant or any police personal shall be deemed void and of no legal effect.

4. A declaration that those responsible for such interference in disciplinary matters carried out by the Office of the Climate Change & Development Authority shall be liable for damages suffered due to their actions,

5. A permanent injunction restraining the first defendant and any police personal including their servants and agents from interfering, influencing, impeding or otherwise disrupting the performance of any disciplinary processes carried out by the Office of Climate Change and Development Authority.

6. A permanent injunction restraining the first defendant and any of its police personnel, servants or agents from threatening, intimidating, ordering and directing the Plaintiff to reinstate the second Defendant to his position after he has been terminated from employment.

……”

PRELIMINARY ISSUE

7. As a preliminary matter, the defendants argue that the plaintiff has no capacity or authority to commence the action because they claim that his term of appointment as the Acting Managing Director of the Authority expired before he had any authority to file this proceeding.

8. I note that the parties had agreed or were aware that the issue would be raised as a preliminary matter at trial. As such, I find the preliminary issue properly before me for consideration.

9. Now, the parties are at common ground on the following. Firstly, by NEC decision No. 200/2021, the plaintiff was appointed as the Acting Managing Director of the Authority for a fixed term of 1 year commencing on 28 July 2021 to 28 July 2022. Secondly, the plaintiff terminated the second defendant on 6 June 2022 during his term as the Acting Managing Director of the Authority. Thirdly, the plaintiff filed this proceeding after his 1-year term as the Acting Managing Director of the Authority as per the NEC Decision No. 200/2021 had formally expired. Let me elaborate on the third common ground. The plaintiff filed the proceeding on 1 March 2023, which was well after 28 July 2022, the latter being the expiry date of his term in office with the Authority.

10. I note the submissions of the parties on this issue. For the plaintiff, he submits that because there was a vacancy to the position of Managing Director of the Authority after his acting term had expired, that he continued to act in his capacity as the Authority's Acting Managing Director. Evidence adduced under Exhibit P3 shows that presently, there is an NEC submission that has been made or is in the process of being presented that recommends the plaintiff for the post of Acting Managing Director of the Authority for a further term of 1 year.

11. The plaintiff also relies on laws such as s 20 of the Public Service (Management) Act 1995 (PSMA), s 8(1) of the Climate Change Act and s 254 of the Constitution. I set them out herein respectively as follows:

“20. Departments of the Public Service.

(1) There shall be —

(a) a Department of the Prime Minister and National Executive Council; and

(b) a Department of Personnel Management; and

(c) other Departments and Offices deemed to be Departments established under Subsection (2).

(2) The Head of State, acting on advice, may, by notice in the National Gazette —

(a) establish a Department or establish an Office and deem the Office as a Department; or

(b) abolish a Department; or

(c) alter the name of a Department other than the Department of Prime Minister and National Executive Council and the Department of Personnel Management.

……

8. Establishment.

(1) The Climate Change and Development Authority is hereby established.

(2) The Authority —

(a) is a corporation with perpetual succession; and

(b) shall have a Seal; and

(c) may acquire, hold and dispose of property and any other assets; and

(d) may sue or be sued in its corporate name.

……

254. Filling of offices, etc.

In principle—

(a) no constitutional office shall be left unfilled on a substantive basis...