Koso v Independent State of Papua New Guinea [2013] PGNC 283; N5209 (25 April 2013)

N5209

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1018 OF 1997

BENSON KOSO

Plaintiff

AND

COMMISSIONER OF POLICE

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Goroka: Ipang AJ
2012: September 19
2013: April 25

CIVIL LAW – Police Officer with the Police Force – claim for wrongful termination – charge not served – details of the charge not made known to the plaintiff – termination notice not served on the plaintiff.

Cases Cited:

Sede Kure v Commissioner of Police & State [1998] PNGLR 44

Counsel:

Plaintiff In Person
Defendants Nil Apperarances

JUDGMENT
25 April, 2013

1. IPANG, AJ: The plaintiff is a former policeman who claimed he was wrongfully terminated from the Police Force. He claims apart from other damages, that he be reinstated as a constable with the Police Force together with back payment of his salary. From the outset, my task has been a difficult one as the Defendants have not been represented by the State Lawyers and more so, the Plaintiff has not been represented by a lawyer. I have during the progress of this case, adjourned the purposed purposely or the plaintiff to seek services of a lawyer. However, the plaintiff could not afford services of a lawyer so the plaintiff appeared in person and prosecuted his case.
   
2. Appropriate documents like Notice of Trial, Section 35 Notice under the Evidence Act, and the Affidavit of Service were filed. Despite this, the Defendants have not filed any counter affidavits.
   
3. This case has a long sequered history dating back to the 1990s. In order to appreciate how this case came through till 2012, I will try as much as possible to give a back ground to this case.
   
4. In around mid 1989, the Plaintiff says he applied and was selected to join the Police Force. In December of 1989 he commenced training at Bomana Police College. In May 1990 his Police Training was completed and he was posted to Enga Province and was based at Wabag Police Station. He was attached with the General Duties Section. He served out his probationary period in 1991 and was gazette as a Constable.
   
5. Plaintiff says sometimes in 1992 at that time he was roistered on night duties from midnight to morning there were two (2) separate incidents of detainees breaking out of the Police Cell through the roof during heavy rain. During that time Provincial Police Commander (PPC) was Barkly Yarome and Police Station Commander (PSC) was Willie Ambrose.
   
6. Between March or May, 1993 the acting Police Station Commander (a/PSC) Sgt Miukin Kakas was to serve the Plaintiff and his other colleagues their disciplinary charges in relation to Cell Breakouts in 1992. Plaintiff went to Police Station Commander's Office to receive his charges. When Sgt Miukin read out the charges, the plaintiff asked Sgt Miukin to postpone the charges to a later date and that charges to be served by Police Station Commander Willie Ambrose. Police Station Commander Ambrose was on leave at that time. Plaintiff said he took this approach on the basis that PSC Ambrose might have some reasons for not charging Plaintiff in 1992.
   
7. Sgt Miukin reported to a/PSC Wauglo, who then summoned the Plaintiff into his office and verbally suspended the plaintiff from duty indefinitely without pay. Plaintiff says the suspension was not lifted despites his approaches to the PPC Wauglo and Fred Sheekiot. The suspension lasted for quite long and then the Plaintiff said he decided to find out for himself. He decided to live Wabag and travel to Port Moresby.
   
8. On his way to Banz, he said he met PPC's staff Officer Yeldrewa in Mt. Hagen who told him that his Termination Notice was with PPC. Plaintiff says upon learning of such notice he travelled back to Wabag and asked PPC Fred Sheekiot to be served the Notice. However, he said PPC Sheekiot asked him to wait. He said he waited in vain for 2 weeks.
   
9. The plaintiff flew down to Port Moresby and on the 29th of August, 1993 he went to the Konedobu Headquarter. He approached the Personnel and Internal Discipline Section and enquired about his Charges and Termination Notice. He discovered a scrap paper with writing on it saying, "Member has been terminated." Plaintiff then enquired if this Suspension and Termination Notice could be served on him but there was nothing on the file.
   
10. Plaintiff then at the same time approached the Personnel Section how the Plaintiff's initial File was shown with no documents. One of the officers contacted the Provincial Police Commander in Wabag and few minutes later a single paper fax over and the officer photocopied and gave it to the plaintiff. It was the plaintiff's Termination Notice from the Provincial Police Commander (PPC) Wabag.
    
11. The plaintiff the enquired with OIC Discipline Mr. Karmi on the possibility of lodging an appeal however he (plaintiff) was advices that the appeal will not be entertained as it would be out of time.
    
12. So, the plaintiff on the 20th of August, 1997 gave his Notice of Intention to make a claim against the State pursuant to the Claims By and Against the State Act. On the 13th October, 1997 the Solicitor General's Office acknowledged the notice. The plaintiff filed the Writ of Summons (WS) on the 29th of October, 1997 and served the Writ of Summons on the Defendants. The Solicitor General filed the Notice of Intention to Defend and then the Defence on the 26th of January, 1988.
    
13. Defendants argued that the plaintiff left the Police Barracks on his on accord and not from any direction given by the First Defendant. They also argued that he was still a serving member of the Police Force.
    
14. Legal Issues:
    
15. Whether proper and lawful process was followed which saw plaintiff been terminated from the Police Force.
    
16. Whether plaintiff's termination was lawful?
    

The requirements under the Police Force Act:

17. Section 23 of the Police Force, 1998 deal with serious offences. It is appropriate that I re-state this provision in full:-
    

23. DEALING WITH SERIOUS OFFENCES

(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(2) A member referred to in subsection (1) may be charged by the Commissioner or by a Commissioned Officer authorized by the Commissioner to lay charges under S. 19.

(3) On a charge being laid against a member of the Force that member shall-

• (a) Be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and
  
• (b) Where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge; and
  
• (c) Be invited-
  
  • (i) To reply within 14 days, stating whether he admits or denies the truth of the charge; and
    
  • (ii) To give any explanation that he desires to give in regard to it.
    

(4) A charge or other documentation is deemed to have been furnished to a member under this section-

• (a) Where it has been personally served on the member; or
  
• (b) Where, it being unreasonable because of distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.
  

(5) Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4) (a) or within 28 days after posting in accordance with Subsection 4 (b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24.

18. The S. 23 of the Police Force Act, 1998 provides the process which the First Defendant should follow. Thereafter, S. 24 Determination of charge and then S. 25 Imposition of penalty where charge sustained. The S. 26 provided for penalties for serious offences.
    
19. Whether proper and lawful process was followed which saw plaintiff been terminated from the Police Force.
    
20. From the background facts it was obvious the plaintiff was never served with any disciplinary charges. In or around March or May, 1993 an attempt was taken to serve his disciplinary charge by a/Police Station Commander Sergeant Miukin Kakas however, when plaintiff requested that the charge be postponed till PSC Willie Ambrose return from his leave. Until then the plaintiff was not served his charge until he flew down to Port Moresby and went to Police Headquarters and discovered that he was not terminated.
    
21. In Sede Kure v Commissioner of Police and The State [1998] PNGLR 44 at p.50 Sevua, J (as he then was) stated;-
    

"I have considered the decision of Injia, J in Dicky Nanan v John Maru & Police Commissioner (supra) and Kapi, DCJ in Pierson John Kamangip v Commissioner of Police & The State (supra) and I agree with their Honours, particularly, in respect of S. 46 of the Police Force Act, Ch. 65. The Commissioner is required, as a matter of law, to serve the charge on the member being charged; invite the member to admit or deny the charge and invite the member to offer an explanation if he so desires. That requirement is mandatory."

22. If the above mandatory requirement is applied to this instant case, it become obvious that the plaintiff was not serve his charge thus no opportunity was given to him to respond to his charge. He was surprised to discover later that he was terminated from the Police Force. His termination notice was not even served on him. This in my view amount to unlawful termination. Proper procedures under the Police Force Act were not complied with.
    
23. I, therefore grant the plaintiff the following orders;-
    
    1. A declaration that the plaintiff's termination of employment by the Defendants in or around June, 1993 is unlawful.
       
    2. That the plaintiff be reinstated back into the Police Force as a regular constable.
       
    3. That his salaries and entitlements be backdated to the date of his suspension
       
    4. Defendants to pay plaintiff for general damages for physical suffering and

EmotionalTrauma.

5. Costs of the proceedings
   
6. Matter be re-listed in the Listing List for assessment of damages.
   

______________________________________
Plaintiff in person
Nil Appearances for the Defendant