State v Commissioner of Prisons, Ex parte Loloma [2004] FJHC 282; HBJ002J.1999L (14 May 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
JUDICIAL REVIEW

JUDICIAL REVIEW NO. HBJ002 OF 1999L

THE STATE

V

COMMISSIONER OF PRISONS

EX PARTE

JOPE LOLOMA

Gates J.

Mr G.P. Shankar for Applicant
Mr Sunil Kumar for Respondent

25 May, 28 September 2001
14 May 2004

JUDGMENT

Judicial review; Prisons Act Cap 86; appointment of subordinate officer section 11(2); enlistment for fixed period of years, section 12; expiry of period; decision of Commissioner not to re-enlist applicant; whether decision impugned susceptible to judicial review; relevance to decision of section 15 procedure for discharging an officer; public or private law matter; master and servant relationship; whether public law underpinned process of selection for re-enlistment; was there a legal right to be hired?; implicit power to desist from enlisting; duty to give fair consideration; failure not susceptible to judicial review.

[1] The applicant seeks judicial review of the decision by the Commissioner of Prisons on 26.4.99 not to reappoint him as a subordinate officer in the Prisons Service.

[2] A summons and accompanying papers were filed on 11 June 1999. Leave was granted unopposed on 9 July 1999 by Madraiwiwi J. The respondent filed in opposition an affidavit sworn by the Commissioner. Written submissions were also filed.

[3] This is another case which has been the victim of systemic delay at the Lautoka High Court. Though there had been some delay in the filing of opposing material and in the completion of written submissions, the far greater delay lies at the door of the court.

[4] I referred to this difficulty in The State v Commissioner of Police Ex parte Babu Ram (unreported) Lautoka High Court Judicial Review No. HBJ014.98L; 5 April 2004 and stated:

"Regrettably this is a case, in which the parties and particularly the aggrieved party, who brings the application, have been poorly served by the court and by judicial services."

I referred to the observations of two of my brother judges "on the inadequacy of the services and judicial officers made available to deal with the work."

[5] I repeat what I said then, namely that I tender my apologies to the parties on behalf of the judges and for my own part, the chief part, in contributing to the delay.

Background

[6] The applicant says he has been a prison officer for a period consisting of two five year terms. He complains of receiving a memorandum from the Commissioner of Prisons on 26 April 1999 informing him that his engagement would not be renewed on its expiry on 15.7.99. He says this decision was taken without any notice and without him having an opportunity to be heard.

[7] A staff board meeting was held on 4 May 1999. At this meeting it is claimed by the Commissioner that the applicant was heard and that he was allowed to put his grievances personally. The board consisted of 3 prison officers, one of whom was the Assistant Commissioner of Prisons (Administration). The Commissioner exhibited the minutes of that meeting. In one part, the minutes record:

"1.1 POC Jope stated that he had committed his last breach of discipline since

May, 1998 and is almost one (1) year now that he is keeping a clean record.

1.2 He added that he has reached a stage of maturity and has realised all his wrong doings during the past."

[8] The applicant says this staff board meeting "gave me (a) lip service hearing." The board ended by informing the applicant that the decision of 26 April 1999 was to stand.

[9] The applicant referred in his affidavit to the factors which the Commissioner had stated in his memorandum of 26.4.99 as influencing his decision not to re-enlist the applicant. The factors were set out under headings covering the previous 5 years. They were sick leave, breach of discipline, and written letters (or letters of warning). The applicant sought to provide the court with explanations and he submitted that all of the disciplinary charges had been trivial.

[10] The applicant complained of being unreasonably and unfairly victimized, and of being treated differently from other prison officers who had also been in neglect of duty. He complained of being dissatisfied with the decisions on these disciplinary matters. He said there had been a great deal of laxity in the Prison Department with rules, regulations and procedures. He concluded with the observation "that the escape of prisoners have been routine affairs without deliberate fault (on the part) of prison officers."

[11] Naturally the Commissioner made answers to each of the allegations in his affidavit. He exhibited all of the case histories and records of tribunal proceedings.

[12] The applicant sought declarations, certiorari, and the quashing of the Commissioner’s decision not to renew. He specified 10 grounds for the impugning of the decision. The plethora of objections to the Commissioner’s decision is not of weighty assistance. In Korovulavula v PSC (unreported) Fiji Court of Appeal Civil App. No. ABU0006 of 1994; 23 August 1994, the Court of Appeal remarked of this kind of approach (at p.15):

"By raising every conceivable issue they seem to think that one at least will succeed. In fact they run the very considerable risk of none succeeding for the Court may be left unable to tell what is important and what is not."

Jurisdiction: is the decision reviewable?

[13] The applicant was first appointed by the then Commissioner of Prisons pursuant to section 11(2) of the Act. He was enlisted as a subordinate officer to serve a period of 5 years in accordance with section 12. At the expiry of that period, he was re-enlisted for a further period of 5 years again in accordance with section 12.

[14] Discharge from the Fiji Prisons Service is governed by section 15 which provides:

"15. (1) Subject to subsection (3) any officer of the Prisons Service other than a senior officer may be discharged by the Controller at any time

(a) if he is pronounced by a Government medical officer to be mentally

or physically unfit for further service;

(b) on reduction of establishment;

(c) if the Controller considers that he is unlikely to become, or has ceased

to be, an efficient officer.

(Amended by Ordinance 20 of 1968 s. 4, Order 10th July 1970* and Act 19 of 1974, s. 4)

(2) Every officer of the Prisons Service discharged under the provisions of subsection (1) shall be given one month’s notice of intention to discharge him from the Prisons Service or at the option of the Controller one month’s pay in lieu of such notice.

(3) Where it is considered that any such officer should be so discharged,

he shall be so informed and told that

(a) any representations made in writing by him within fourteen days, will be forwarded to the Secretary of the Public Service Commission, accompanied by all relevant papers and records for a decision to be made by the Commission; and that

(b) if he makes no representations within fourteen days, he shall be discharged in the matter prescribed by this section."

[15] Discharge here must refer to the discharge of a serving officer. It is not applicable to the first appointment of an officer or to a subsequent re-enlistment. It is immaterial that re-enlistment is being considered prior to the expiry of an officer’s present term of enlistment. The decision impugned is the decision not to re-enlist. Section 15 therefore would appear not to be relevant.

[16] It is well settled that judicial review does not lie in a strict master and servant relationship. For it to lie there must exist an issue of public law. Judicial review is not available where the issue is one of a private law obligation. We are dealing here with the question of appointment, not of removal. Removal or discharge is statutorily restricted by section 15: Mallock v Aberdeen Corporation (1971) 2 All E.R. 1278 (HL).

[17] In speaking of the prerogative remedies of mandamus, prohibition and certiorari and in noting that the English Rules had not extended the circumstances of their availability, Woolf J in R v BBC, ex parte Lavelle (1983) 1 All E.R. 241 at p.248 said:

"Those remedies were not previously available to enforce private rights but were what could be described as public law remedies. They were not appropriate, and in my view remain inappropriate remedies, for enforcing breaches of ordinary obligations owed by a master to his servant. An application for judicial review has not and should not be extended to a pure employment situation."

[18] In R v East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; [1985] QB 152 Purchas LJ at p.176B-C said:

"There is a danger of confusing the rights with their appropriate remedies enjoyed by an employee arising out of a private contract of employment with the performance by a public body of the duties imposed upon it as part of the statutory terms under which it exercises its powers. The former are appropriate for private remedies inter partes whether by action in the High Court or in the appropriate statutory tribunal, whilst the latter are subject to the supervisory powers of the court under R.S.C., Ord. 53."

Both cases were cited with approval in Praveen Prakash Palani v FEA (unreported) Fiji Court of Appeal Civil Appeal No. ABU0028 of 1996; 18 July 1997.

[19] Hodgson J who had been the judge at first instance in Walsh observed in a later case R v Home Secretary, ex parte Benwell [1985] 1 QB 554:

"Clearly, the Court of Appeal in Ex parte Walsh did not consider the purported dismissal on disciplinary grounds of Mr. Walsh to be the performance of any duty imposed upon the authority as part of the statutory terms under which it exercised its powers."

[20] Benwell was also a case involving a prison officer. The disciplinary proceedings against him were flawed for a variety of reasons. The court found that the Home Office in making a disciplinary award of dismissal was performing the duties imposed upon it as part of the statutory terms under which it was to exercise its powers. Hodgson J concluded that the court could exercise its supervisory powers therefore and provide a remedy for the applicant.

[21] The court had noted that whereas nurses entered into contracts of employment with health authorities, prison officers were "appointed" by the Home Secretary: (Benwell p.572G). Though the applicant in the instant case was "appointed", he was appointed or re-enlisted for a fixed period. During the currency of its term the applicant’s appointment for the term was underpinned by statute and the applicant was protected from dismissal. Once the term had expired and he was no longer enlisted, there was nothing remaining to protect. The question of the applicant’s re-enlistment therefore falls within private law.

[22] In Regina v Trent Regional Health Authority ex parte Jones (1986) The Times LR June 18, 1986, 342 the court held that the decision of a health authority not to appoint to the post of consultant orthopaedic surgeon a candidate recommended by the advisory appointment committee was not susceptible of judicial review.

[23] However the references revealed the surgeon applicant had had a period of sick leave in 1985 following what was described as a "temporary aberration of behaviour with amnesia". The court said the vital requirement before judicial review was available was statutory underpinning, and found that there was none. The same could be said in the instant case. In Jones it was said that beyond that, the authority might employ such person as it might itself determine. In performing such function "at that stage it was in no way different from any commercial or other employer."

[24] Macpherson J observed:

"It was true that that meant that the applicant had no remedy against the rejection of his application. But no more did any applicant for any employment have such a remedy."

and ended:

"The common law had always to some extent protected employees at the firing stage, and the industrial legislation of recent years had extended that protection; but there had never been any legal right to be hired and in his Lordship’s judgment there was none here, nor anything which required the court to supervise that stage of the relationship because of any statutory underpinning."

[25] A similar factual situation to the instant case can be found in that of Josefa Vuetaki v The Commissioner of Prisons and AG [1989] 35 Fiji LR 98. The prison officer applicant had been told, as he was about to go on leave, that he would not be re-engaged. He also claimed the protection of section 15, which he said restricted the right of the Commissioner to discharge an officer.

[26] Jesuratnam J said (at p.100E):

"I think it is clear from the terms of section 12 and the scheme of the Act as a whole that implicit in the power of the Commissioner to enlist an officer for a particular period of years is the power to desist from enlisting or re-engaging him for a further period at the conclusion of the current period. If however an officer is discharged during the pendency of a current period the provisions of section 15 will apply because such discharge arises during the current period and not at its conclusion."

[27] The judge drew the distinction between an applicant who was within a period of service and one whose period of enlistment had expired. He continued:

"A discharge can thus arise if the services of an officer are dispensed with during the pendency or currency of his actual period of service. At the end of a stipulated period of service there cannot arise any question of discharge because in such a case his period of service expires by effluxion of time. That is why there is no specific provision to cover such a situation. No intervention or no extra act by anyone is necessary to bring about that result.

I am fortified in my view by a comparison of section 12 of the Prisons Act with section 9 of the Police Act and section 8 of the Royal Fiji Military Forces Act.

The regulations too refer to "appointment" and "re-appointment". The scheme of the Act and allied Acts make it quite clear that each period of appointment under section 12 is separate, distinct, exclusive, independent and self-contained."

[28] This is the position here. The decision not to re-enlist the applicant is not the same as a decision to discharge him. Judicial review is not available in an ordinary contract matter between master and servant, so far as appointments are concerned. Nor was there an entitlement to be heard prior to the making of the Commissioner’s decision.

[29] The duty of any decision maker is to act fairly and with bona fides. There is no material here that suggests the opposite. The convening and sitting of the staff board, albeit of uncertain status, tends to confirm that. It heard what the applicant had to say. The applicant admitted his record of disciplinary breaches, some 17 in all. He said he had matured and had not committed any in the previous 12 months. Nonetheless the board was not prepared to recommend that the Commissioner change his decision.

[30] The Commissioner had given his reasons to the applicant for not re-enlisting. The applicant says all of the breaches of discipline were trivial and went on to dispute the facts or conclusions. In view of his undisputed admission of "all his wrong doings during the past" to the staff board this late challenge seems unmeritorious. The Commissioner’s decision was not unreasonable in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[31] The applicant was re-enlisted for 5 years after his first 5 year period of enlistment. It had been hoped his conduct and performance would have improved. The Commissioner based his decision which is now impugned on a review of the applicant’s employment record. The Respondent’s counsel summarized the position in a nutshell when submitting:

"Any reasonable authority or employer, after considering the consistent and unfavourable history of breaches of discipline of the applicant, and after leaving afforded the applicant numerous opportunities for improvement and development, would have deferred to re-engage the applicant. The applicant has simply shown no prospects for development and or improvement after ten years of service in the prisons service."

[32] The applicant disputes the period of enlistment and submits gazetting of a prescribed period of enlistment by the Minister pursuant to section 12 was not done. If this were the case the challenge can be taken up in a civil action, not in judicial review proceedings. It seems unlikely that prescribed terms of enlistment would need to be gazetted.

[33] At the stage of consideration of re-enlistment, the Commissioner’s duty was to give proper consideration to the applicant’s case. The court is not concerned in these proceedings with whether that decision was correct, and usually only with whether it was carried out in a fair and proper manner. Undoubtedly it was. If it were not, still judicial review would not be the remedy available here for the failure to hire.
[34] In the result, judicial review is refused with costs to the respondent, to be taxed if not agreed.

A.H.C.T. GATES
JUDGE

Solicitors for the Applicant: Messrs G.P. Shankar & Co., Ba
Solicitors for the Respondent: Office of the Attorney General’s Chambers, Lautoka