Wauwia v Inguba [2013] PGNC 61; N5232 (12 June 2013)

N5232

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 630 OF 2006

BETWEEN

ANDREW WAUWIA
(Applicant)

AND

SAM INGUBA, QPM
COMMISSIONER FOR POLICE
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2013: 05th & 12th June

JUDICIAL REVIEW- Application for judicial review – Review of decision to dismiss police officer – Police officer found guilty of serious disciplinary offences – Failure to comply with procedure for dismissal – Error in decision making process – Appointment of disciplinary officer – Preparation and furnishing of a report – Mandatory requirements – Finding of guilty and decision to dismiss illegal and invalid – Application granted – Police Act, 1998 – ss. 24 & 25 – National Court Rules – O 16, r 3.

JUDICIAL REVIEW- Application for judicial review – Remedies – Reinstatement – Loss of pay and other entitlements – Discretionary – Delay of five and a half years – Whether reinstatement with no loss of pay and entitlements appropriate – National Court Rules – O 16, r 4.

Cases cited:

Andrew Wauwia -v- Sam Inguba as Commissioner for Police & The State: SCM No 04 of 2009 (Unnumbered & Unreported Judgment of 30th June 2011)
Jimmy Somoi -v- Sam Inguba as Commissioner of Police & The State: OS No 675 of 2003 (Unnumbered & Unreported Judgment of 03rd November 2005)
Timothy Pomoso -v- Gari L Baki as Commissioner of Police & The State: OS No 307 of 2008 (JR) (Unnumbered & Unreported Judgment of 11th July 2011)
Counsel:

Mr R Uware with Mr B Geita for Applicant
No appearance for Respondents

JUDGMENT

12th June, 2013

1. MAKAIL, J: This is an application for judicial review, leave having being granted on 24th October 2009 to review the decision of the first respondent to dismiss the applicant from the Police Force on 15th February 2006 on two serious disciplinary offences pursuant to O 16 of the National Court Rules. The two serious disciplinary offences relate to first issuing of a police issued pump action shotgun to an unauthorised person by the name of Kin Chiong Kuan and secondly, issuing of five live police issued shotgun cartridges to Kin Chiong Kuan between December 2002 and 24th January 2003.

2. The application for judicial review was remitted for rehearing after the applicant successfully appealed to the Supreme Court against the decision of the National Court dismissing his application for judicial review: see Andrew Wauwia -v- Sam Inguba as Commissioner for Police & The State: SCM No 04 of 2009 (Unnumbered & Unreported Judgment of 30th June 2011).

3. A lawyer from the Solicitor-General's Office appeared for the respondents before the Listing Judge when the matter was allocated the trial date. At the date of trial, the respondents did not appear and leave was granted to the applicant to proceed ex parte. Although he pleaded four grounds in the statement in support made pursuant to O 16, r 3(2)(a) of the National Court Rules, he pursued only two to demonstrate that an error of law has occurred when the first respondent determined the serious disciplinary charges, found him guilty and dismissed him from the Police Force. They were:

3.1. Under s. 24(1) of the Police Act, 1998, it is mandatory that the first respondent appoint a disciplinary officer to investigate him. The first respondent did not and is breach of s. 24(1), and

3.2. Under s. 25(1) of the Police Act, 1998, it is also mandatory that the disciplinary officer provide a report to the first respondent before the first respondent makes a decision. There was no report prepared and furnished by the disciplinary officer that would give the first respondent a basis to sustain the serious disciplinary charges and dismiss him from the Police Force. The first respondent made a decision in breach of s. 25(1).

4. He relied on his affidavit sworn on 08th September 2006 and filed on 10th October 2006, affidavit of counsel sworn on 03rd August 2006 and filed on 08th September 2009 and additional affidavit of counsel sworn and filed on 16th October 2006. As the respondents were absent, the Court did not receive any evidence from them.

5. For the first ground, it was submitted that s. 24(1) makes it mandatory for the first respondent to appoint a disciplinary officer to investigate the circumstances relating to the serious disciplinary charges against the applicant. The evidence adduced so far does not show the existence of an instrument of appointment of a disciplinary officer.

6. In relation to the second ground, it was submitted that as the serious disciplinary charges relate to a hidden firearm and ammunitions, there is no evidence of an independent investigation carried out by a disciplinary officer appointed under s. 24(1) and furnished to the first respondent to establish the commission of the offences, recommend to the first respondent to sustain them and dismiss the applicant from the Police Force. It was further submitted that s. 25(1) makes it mandatory for an investigation to be carried out and a report provided to the first respondent before he makes any decision.

7. In conclusion, it was submitted that in each case, failure to comply with these mandatory procedural requirements rendered the decision of the first respondent unlawful and invalid. The applicant relied on the cases of Jimmy Somoi -v- Sam Inguba as Commissioner of Police & The State: OS No 675 of 2003 (Unnumbered & Unreported Judgment of 03rd November 2005) and Timothy Pomoso -v- Gari L Baki as Commissioner of Police & The State: OS No 307 of 2008 (JR) (Unnumbered & Unreported Judgment of 11th July 2011) to support these submissions.

8. S. 24 of the Police Act, 1998 relevantly states:

"24. Determination of charge.

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be -

(a) a person other than the person who has charged the member; and

(b) of superior rank to the member charged.

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report." (Emphasis added).

9. Section 25 states:

"25. Imposition of penalty where charge sustained.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2) The Commissioner after considering the report referred to Subsection (1), may, where –

(a) the disciplinary officer is of opinion that the charge has been sustained; and

(b) the Commissioner concurs with that opinion,

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26.

(3) Where –

(a) the disciplinary officer reports that in his opinion the charge has not been sustained; and

(b) after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained, the Commissioner shall dismiss the charge.

(4) Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.

(5) Where the Commissioner imposes a penalty under Section 26(1), other than a penalty in terms of Paragraph (g) of that subsection, the Commissioner may, in addition to such penalty direct that the offending member complete a course of retraining in accordance with Section 26(2).

(6) A retraining course for the purposes of Section 26(2) shall comprise such course of training and instructions as the Commissioner determines, and may include an examination or examinations.

(7) Where, at the conclusion of such time as the Commissioner may allow, the offending member has satisfactorily completed the retraining course, and passed any examinations connected therewith -

(a) the penalty in the case of a fine, or forfeiture of pay, may, in the discretion of the Commissioner be remitted in whole or in part, and the proportion so remitted shall be repaid to the offending member; and

(b) any reduction in rank or salary may be reversed in whole or in part as from the date of satisfactory completion of the retraining course, and the passing of the examination." (Emphasis added).

10. In relation to the first ground, I am satisfied there is no evidence that the first respondent had appointed a disciplinary officer to investigate the serious disciplinary charges against the applicant. As to the second ground, I am also satisfied that there is no evidence of a report being prepared and furnished to the first respondent in relation to the serious disciplinary charges. I have read the cases of Jimmy Somoi and Timothy Pomoso and I am also satisfied that they support the applicant's submission that it is mandatory for the first respondent to comply with s. 24(1) and s. 25(1) and failure to comply will render his decision unlawful and open to be quashed. On the authority of ss. 24(1) and 25(1) and these cases, I am satisfied that the first respondent reached his decision in breach of these mandatory requirements and such breaches renders his decision unlawful and invalid.

11. I uphold the application for judicial review, declare the two serious disciplinary charges issued on 13th March 2003 null and void, declare the finding of guilty on both charges null and void, declare the decision to dismiss the applicant in each case null and void and grant an order in the nature of certiorari quashing the finding of guilty on both charges and also the decision to dismiss him from the Police Force.

12. As to the order for reinstatement with no loss of pay and entitlements, they are discretionary. Their grant depends on a number of factors. First and foremost is the delay and the other is the hardship that may be caused to the respondents if these reliefs are granted. It was submitted that the applicant promptly applied for and was granted leave to review the decision of the first respondent. Following the grant of leave, the Court heard the substantive application for judicial review and dismissed it. The applicant appealed to the Supreme Court. The Supreme Court upheld the appeal and remitted it to the National Court for rehearing. The Court was referred to the decision of the Supreme Court which was delivered on 30th June 2011. The delay was through no fault of the applicant and has been satisfactorily explained. For these reasons, the applicant should be reinstated with no loss of pay and entitlements.

13. In an application for judicial review where the primary relief is an order in the nature of certiorari, time is of essence. The National Court Rules, O 16, r 4 prescribes a time limit of four months. The reason is obvious. The administration of the decision making body must move on. It cannot wait for the decision of the Court if the aggrieved party seeks review of its decision.

14. I am satisfied that the delay has been satisfactorily explained but the difficulty I have is that, five and a half years has lapsed since his dismissal. While there is no evidence to establish that his position has been filled by another officer, it would be logical and reasonable to infer that it has, especially when more than five years has lapsed. At the time of the applicant's dismissal, he held the rank of Inspector and was based at Goroka Police Station. Striking a balance between these two competing interests, I order that he be reinstated to the Police Force to a position to be determined by the first respondent but on the same rank as before, that is, Inspector.

15. As to loss of pay and entitlements, on 11th February 2009, the Court dismissed the application for judicial review. If it had upheld it, the delay would have been three years and reasonable to reinstate the applicant with no loss of pay and entitlements. Given that he had appealed to the Supreme Court, there was a further delay of two and a half years. What this means is that for a total of five and a half years, the applicant had not worked. In my view to order the respondents to pay him loss of pay and entitlements for this period would amount to unjust enrichment. In the exercise of my discretion, I order the respondents to pay him loss of pay and entitlements from the date of dismissal to the date of the first decision, which is 11th February 2009. Finally, I order the respondents to pay the applicant's costs of the proceedings to be taxed if not agreed.

Judgment and orders accordingly.
____________________________________

Public Solicitor: Lawyers for the Applicant
Acting Solicitor-General: Lawyers for the Respondents