Karawe v Commissioner of Police [2023] KIHC 10; Civil Case 71 of 2016 (26 May 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 71 OF 2016

BETWEEN:
IUKA KARAWE
Applicant

AND:
COMMISSIONER OF POLICE
Respondent

Date of Hearing: 12 MAY 2023
Date of Judgment: 26 MAY 2023

Appearances: Ms. Eweata Maata for the Applicant
Ms. Tumai Timeon for the Respondent

JUDGMENT

Introduction:

1. The applicant filed an application dated 21 September 2016 to apply for leave to extend the time and leave to apply for an order of certiorari under Order 61 of the High Court (Civil Procedure) Rules 1964.
   
2. The content of the application also seeks an Order of the court for certiorari to bring before this court for the purpose of its being quashed the decisions of the Non-Summary Board delivered on the 13^th of March 2015, the Commissioner of Police dated the 9^th of April 2015, and the Public Service Commission that confirmed the decision of the Commissioner.
   
3. At the commencement of the hearing, this court agrees to deal first with the application for leave for extension of time and leave to apply for an order of certiorari.
   

Brief fact:

4. The applicant was a police senior constable when he was instructed to transfer station to North Tarawa. He refused to transfer and was charged with disobeying this instruction under section 41(1)(d)(i) of the Police Service Act 2008. He was found not guilty, but the Commissioner ordered a rehearing. The rehearing took place on 6 March 2015, and on the 9^th of April 2015, the Board found the applicant guilty and recommended a dismissal. After a review of the Board’s decision, the Commissioner of Police issued the penalty of a demotion. The applicant appealed to the Public Service Commission, and the Commissioner’s decision was endorsed.
   

Applicable Law:

5. Order 61 r2,3 and 5 of the High Court (Civil Procedure) Rules 1964
   

Case Authorities:

6. For the applicant;

Batee and Tiroi v Trustee for the Jehova’s Witness Church [2006] KICA 17
Tabora v Uruatarawa [2009] KICA 9

7. For the respondent;

Eritane v Rubeia [2011] KIHC 28; Civil Case 118 of 2010

Principles to follow;

8. The applicant referred this Court to the case of Batee as relevant when considering the applications for an extension of time. Paragraph 16 of the judgment sets out the requirements as follows;
   

“16. As these and other authorities make clear, leave will not normally be granted unless the applicant shows (i) an acceptable explanation for the delay and (ii) that in all the circumstances, it would be fair and equitable to extend time. Significant questions in approaching the exercise of discretion will be the magnitude of the delay, the reasons for it, any prejudice suffered in consequence, and the strength of the appellant’s case. In the end, however, there is an overriding requirement to do what is just.”

The magnitude of the delay and reasons for it:

9. Both parties agreed that the application was filed late. This Court calculates the delay to be almost 12 months for both decisions of the Non-Summary Board and the Commissioner of Police. The counting starts after the six (6) months lapse from the date of the two decisions.
   
   10. The reason for the delay, as deposed in the applicant’s second affidavit, was the difficulty in getting copies of the two decisions from the respondent. In realising that the time for filing had lapsed and that he would not successfully get these copies from the respondent, the applicant requested his lawyer to proceed with the filing. Without copies of these decisions, the applicant’s case was filed based on the facts that the applicant and his lawyer could remember when they attended the hearing of the first Non-Summary Board.
       
   11. The respondent argued, as per Eritane v Rubeia case, that the delay is not justified as, like the applicant in that case, the applicant in this case at hand was also part of the proceedings, therefore, he knew about these decisions. He was just inactive.
       
   12. The respondent also stated that copies of the decisions of the Non-Summary Board and the Commissioner are not needed for this application for leave as what matters only is the date of the decisions to ensure that the application is filed within time. The applicant disagreed as the decisions are essential for him and his lawyer to know if he has a case to file.
       
   13. The respondent also opposed the admittance of the applicant’s amended affidavit as it was filed late, therefore in breach of Order 61 rule 5. The applicant said that the second affidavit is a supplement, not an amended affidavit; consequently, this rule is not applicable. I do not accept this view. Rule 5 is very relevant as it sets out the procedure for this application regarding statements and affidavits. The rule requires the applicant to give notice if he intends to use further affidavits. Strictly speaking, no formal notice was provided before the hearing; however, the hearing was adjourned for a week at the respondent’s Counsel's request to have time to consider this second affidavit. In a way, this serves as the notice required under rule 5 subrule (2); the second affidavit is therefore accepted.
       
   14. Given the above submissions, this Court finds that the delay of almost a year is not vital, and the reason for the delay is accepted. I agree with Counsel for the applicant that they could not properly make an informed decision about the applicant’s case without a copy of these decisions.
       

Prejudice suffered:

15. The respondent submitted that the applicant would not be prejudiced if the extension is not allowed as he has resigned from the Police. The applicant stated, and I agree, that he would be prejudiced as he had been demoted due to these decisions. He had also gone through a distressful experience because of this demotion. He is keen to have this matter against him cleared.
    

Strength of the case:

16. The applicant based his argument on the miscarriage of justice, abuse of power, and incorrect interpretation of the relevant provisions of the Kiribati Police Service Act 2008.
17. Under section 25(5) of the KPS Act, he argued that he has a right to appeal within 14 days of the transfer decision as he did not volunteer to transfer. He was charged and put on trial before the Non-Summary Board only three (3) days after that decision.
18. The respondent replied that section 25 is not the correct provision regarding the right to appeal. Also, the period of fourteen (14) days for appeal is overridden by subsection 7. There was also a submission that the Non-Summary Board’s role is only to make recommendations to the Commissioner; therefore, it cannot be appealed.
19. From these submissions, it is clear that there is an important issue to be decided by this court of whether or not there was a miscarriage of justice, abuse of power, and misinterpretation of the KPS Act.
    

Orders:

20. In light of the above reasons, this Court makes the following decision;

1. The application for leave to extend time is granted.
2. The application for leave to bring certiorari proceedings is also granted.

100. The case is listed for mention on 6 June, 10 am, to fix the hearing date of the substantive matter.
     

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice