Corema v Ponjom [2019] PGNC 278; N7996 (13 September 2019)

N7996

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. JR NO. 555 OF 2018

BETWEEN
ANTHONY COREMA
Plaintiff

AND
THOMAS PONJOM
First Defendant

AND
GILBERT TOROPO, BRIGADIER GENERAL, PNG DEFENCE FORCE
Second Defendant

AND
TREVOR MEAURI, SECRETARY FOR DEFENCE FORCE
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2019: 8^th May & 13^th September

JUDICIAL REVIEW – DEFENCE FORCE – Dismissal of member of Defence Force from force – Absence without leave – Breach of natural justice – No disciplinary charge served – No right of reply given – Instant dismissal – Administrative discharge – Absent from duties for over two months – Member considered discharged from Defence Force – Retention not in the best interest of Defence Force – Defence Act – Section 33 – Defence (Period of Service) Regulation – Section 11(2)(e)(ii) – Defence Force Manual of Personnel Administration (MPA) – Chapter 115.3 – Code of Military Discipline – Section 1C9

Cases cited:
Leo Nuia v. Benias Sabumei, Minister for Defence [1992] PNGLR 90
Raphael Pius v. Commodore Peter Ilau & The State (2009) N3833

Raphael Pius v. Commodore Peter Ilau & The State (2011) SC1115

Counsel:
Mr. J. Poya, for Plaintiff
Mr. R. Yahamani, for First, Second and Third Defendants
Mr. K. Kipongi, for Fourth Defendant

JUDGMENT

13^th September, 2019

1. MAKAIL J: The plaintiff was dismissed from the Papua New Guinea Defence Force on 11^th December 2017 for being absent without leave (AWOL). He seeks judicial review of his dismissal and a further refusal by the defendants to reinstate him as a member of the Defence Force on 27^th March 2018.

2. He alleges that it was an instant dismissal because the defendants did not give him the opportunity to be heard under Section 1C9 of the Code of Military Discipline which is the Code governing all disciplinary matters of the members of the Defence Force and further, he was denied natural justice. For that, he seeks to have his dismissal quashed with re-instatement to his former position and no loss of pay and other entitlements.

3. According to his account as set out in his affidavit in support sworn on 13^th August and filed on 14^th August 2018, he does not deny that he was absent from duties from 28^th July 2016 to 12^th October 2016. This was a period of 2 months and 2 weeks.

4. But he denies that it was without leave. He says that he sought leave from the Platoon Commander, Lieutenant Jason Sabua by telephone (mobile phone) prior to taking leave. What he does not say is that the Platoon Commander gave his approval to him to take leave and if the Commander was authorised to grant leave to him.

5. The plaintiff says that it was an emergency situation and he had to leave on short notice to Popondetta to attend to his nephew by the name of Wheatly Lott who was seriously injured and hospitalised at Popondetta General Hospital after being attacked by an enemy tribe during a customary land dispute.

6. However, in order for him to attend to his injured nephew, he must first obtain approval from the second defendant as the head of the Military or, in his absence, the next officer delegated or authorised by the second defendant to grant such approval. Putting it differently, seeking leave is one thing and getting an approval is another. And so, just because the plaintiff sought leave from the Platoon Commander did not mean that he was given the green light to go to Popondetta. In short, there is no evidence, in writing of him, being granted approval by the Platoon Commander or the second defendant to take leave. Secondly, there is no evidence establishing that the Platoon Commander was delegated or authorised by the second defendant to grant such approval (if any).

7. In the absence of such evidence, it must be found that the plaintiff did not get approval prior to his departure for Popondetta. Given this finding, it must follow that regardless of whether or not it was necessary for the second defendant to lay a disciplinary charge, suspend and give him an opportunity to respond to the charge, he has placed himself in an untenable position.

8. It is further compounded by the absence of a notification in the form of a “signal” at the Records Office at Headquarters, Murray Barracks following his return and enquiry. As he has explained, the purpose of the “signal” is to inform the Military of a member’s absence of more than 72 hours and a search will be undertaken to locate the missing member. His explanation is also consistent with and reinforces Chapter 115.3 of the Defence Force Manual of Personnel Administration (MPA) which states:

“When the absence of a member without leave has continued for more than 72 hours, the responsible unit is to report the absence within the next 24 hours by signal which constitutes an POR, to the following.............”

9. While there appears to be an unexplained delay in locating the missing “signal”, there is evidence that through persistence and numerous follow-ups either in person and through his lawyers, on or about 27^th April 2018, he received a letter from the first defendant dated 27^th March 2018 giving an account of what transpired between 28^th July 2016 when it was noted in the Roll Book at the Unit of his absence and 30^th January 2018 when the Discharge Order/Signal was released by the Records Office. He was also informed that he was discharged for being AWOL and that he would not be re-instated.

10. A copy of the signal notice was also given to him. The date recorded on the signal notice was 22^nd August 2016. This was about three weeks after his departure for Popondetta on 28^th July 2016. He does not dispute the existence or authenticity of the signal notice. And so it must be found that his case of being AWOL was dealt with under the procedure set out under Section 33 (termination of service) of the Defence Act, Section 11(2)(e)(ii) of the Defence (Period of Service) Regulation and Chapter 115.3 of the MPA. This is a procedure where a member of the Defence Force, other than an officer, may before the end of his period of service, be discharged by the appropriate authority where the appropriate authority is satisfied that the retention of the member is not in the best interest of the Defence Force.

11. This procedure is quite distinct and highly discretionary to the one being proposed by the plaintiff, which is the one, set out in Section 1C9 of the Code of Military Discipline. It is also open to the defendants to elect between the procedure under the Defence Act, and MPA to discharge the plaintiff and that of Section 1C9 of the Code of Military Discipline. They elected to apply the former. For more information about these two processes, parties can be referred to the National cases of Leo Nuia v. Benias Sabumei, Minister for Defence [1992] PNGLR 90; Raphael Pius v. Commodore Peter Ilau & The State (2009) N3833 and the Supreme Court judgment of Raphael Pius v. Commodore Peter Ilau & The State (2011) SC1115.

12. There is nothing sinister or unusual about the defendants’ decision to adopt and treat the plaintiff’s case of AWOL as one falling under Section 33 (termination of service) of the Defence Act, Section 11(2)(e)(ii) of the Defence (Period of Service) Regulation and Chapter 115.3 of the MPA and, accordingly, have him discharged on the ground of AWOL. Put it the other way, where a member of the Defence Force like the plaintiff is AWOL for a period of more than 2 months, it would be extremely difficult for his or her superiors to justify a decision that his or her retention is in the best interest of the Defence Force.

13. Even the plaintiff’s claim of being recalled and assigned to lead a team to provide security in the 2017 General election, a claim, the first defendant strongly denies, will not exonerate him from being AWOL. If he believes that he has a claim for unpaid services, as he claims, he is free to pursue it with the appropriate authority.

14. For now, his claim that he was denied natural justice and deserves a fair-go by the defendants must fail. The application for judicial review will be dismissed with costs to the defendants, to be taxed, if not agreed.
Judgment and orders accordingly.

_____________________________________________________________
Poya Legal Services: Lawyers for Plaintiff
Defence Force Legal Officer: Lawyers for First, Second & Third Defendants
Solicitor-General: Lawyers for Fourth Defendant