Mondo v Toropo [2020] PGNC 158; N8356 (11 June 2020)

N8356

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 78 of 2018

JOE GIGMAI MONDO
Applicant

V
BRIGADIER GENERAL GILBERT TOROPO, DMS, CDE-COMMANDER, PAPUA NEW GUINEA DEFENCE FORCE
First Respondent

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Miviri J
2020: 2^nd June

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Application for Leave – Order 16 Rule 3 NCR – Locus Standi – Delay – Internal Process exhausted – Arguable case –Prejudice other party to – evidence insufficient – balance not discharged – motion denied – cost follow event.

Cases Cited

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Somare, Re [1981] PNGLR 265

In the Matter of The Organic Law on National and Local Level Government Elections, Pato v Kaiulo, Electoral Commissioner of Papua New Guinea [2003] PGNC 67; N2455
Counsel

M. Kombri, for Plaintiff
No appearance for Defendants.

RULING

11^th June, 2020

1. MIVIRI, J: This is the Ruling on the originating summons ex parte of the plaintiff dated the 15^th February 2018 seeking leave for judicial review under Order 16 Rule 3 of the National Court Rules “the rules” against a decision of the defendants of 18^th October 2017 that dishonourably discharged him as a second lieutenant of the Papua New Guinea Defence Force .
   
2. On the 15^th February 2018, He filed an originating summons with a statement in support under order 16 rule 3 (2) (a) of the “Rules” also dated the same. Then he effected a notice to the secretary for Justice pursuant to Order 16 rule 3 (3). And firmed with an affidavit verifying facts pursuant to Order 16 rule 3 (2) (b) of the Rules also of the same date. To complete he filed his own affidavit also on the 15^th February 2018. There he relevantly deposed that his wife Anna Mondo together with their one - year old daughter Kayleen Mondo, another friend Captain Alphonse Bige with his wife Elizabeth Bige were badly assaulted by a group of policeman around midnight of the 31st December 2016 as they came from Taurama Barracks in their sedan registered number BCD 845.
   
3. He was knocked unconscious and the others suffered injuries to their persons. His wife Anna Mondo was assaulted to the extent of sexual molestation including sexual touching. Their baby suffered shock and was crying profusely. The policemen drove away after causing all these. On lookers assisted them all to the hospital after which together with his wife and baby they returned to their home at Murray Barracks. At the check point military police manning the gates were shocked to see the extent of his injuries together with both his wife and daughter. They went to the police Station at Boroko to report the complaint but there were confrontations with police as a result of previous incident between them both disciplined forces resulting in gunshots fired into the air to quell the confrontation.
   
4. Importantly none of these injuries are evidenced by any professional medical evidence before me either as annexures to the affidavit of the applicant or by Doctors evidencing the extent of the suffering endured by the applicant and immediate family and friends. Including the evidence from his friend Captain Alphonse Bige with his wife Elizabeth Bige with any medical report from them. Better still the Military Police personnel who saw the injuries and took the initiative to complain at the Boroko Police Station. This is important evidence that the applicant has weighed not to produce.
   
5. But emanating from these some officers including the applicant were identified and suspended from duty on the 04^th January 2017. For an officer who has suffered at the hands of the Police together with his immediate family he was charged and faced the process of law. This was formalized by Lieutenant Colonel H. K. Wawada, Commanding officer of the Force Support Battalion by minute to this effect dated that same date now annexure JMG1 of his affidavit. On the 11^th April 2017 at 3.30pm Captain Price Rumints marched the applicant into the conference room of the force support Battalion set up as a military court Martial and presented before the Junior Disciplinary officer Major Roderick Noyamefa sitting as Judge. He was presented with seven charges (annexure JMG2) and was arraigned. Because it was 4.00pm the proceeding was adjourned to the next day 12^th April 2017 at 10.15am, where he was found guilty of all seven charges (annexure JMG3). This was despite the not guilty plea entered by the applicant to all seven charges.
   
6. The Junior Disciplinary Officer Major Roderick Noyamefa referred the verdict in each case to the senior Disciplinary officer Lieutenant Colonel Kingsley Wawada with a brief annexure JMG4 dated 24^th April 2017 for the determination of the penalty to be imposed against the applicant. On the 17^th May 2017 Senior Disciplinary Officer Lieutenant Colonel Kingsley Wawada recommended for the dismissal of the applicant (annexure JMG5). Immediately on the 17^th May 2017 the applicant appealed (annexure JGM6) that decision to the first respondent. Eventually on the 18^th October 2017 pursuant to a signal (annexure JMG7) from the office of the first respondent applicant was discharged as a soldier and second lieutenant
   
7. By Order 16 rule 4 certiorari is being sought to quash the decision that was taken by the first respondent in the matter. By these therefore four months should have been within which this matter should have been brought in for Judicial review. It is now 3 years since the signal set out above for the matter to come to court. It is well over the 4 months period under the rule set out above. Unless there are very good reasons produced to sway this will defeat the matter against. Here reliance is placed on the affidavit of Martin Kombri lawyer acting for the applicant that despite all the letters, (annexure MPK1 & MPK2) that he has written to get the matter on the list and for hearing since the 8^th March 2018, then 5^th April 2018, then 28^th June 2018, then 6^th November 2018, then 19^th November 2018, and 20^th February 2019, and 27^th May 2019, and 24^th May 2020, when it was by email hearing date was finally allocated for Tuesday 2^nd June 2020. Delay has not been his doing or of his counsel. And this evidence he argues is clear he has been trying to get his matter before court for hearing. It is not his fault that there has been delay in prosecuting it before the court. He has not delayed his cause of action and is within time and this ground succeeds in his favour. He says the court staff at the appeals and Judicial review registry are to blame for his demise in time.
   
8. The problem with taking this evidence making out the case for the applicant is that it is without support of the applicant. Here counsel is experienced, versed in litigation and its preparation, and would not lax off in a matter that is drawing on time, if writing of letters only does not secure any advancement of the litigation intended. It would be questionable to write letters only at monthly intervals and not do anything to fast track the case. Particularly when the applicant does not in his affidavit state as to when he consulted a lawyer on the matter. And when did the process start so as to bring the matter to court. This is important evidence that is not in the affidavit of the applicant sworn 15^th February 2018. He is the principle person to explain the delay in bringing forth the matter to court not the lawyer. It is his cause and he would be worried that it is not taking stage in court at all even after five letters in one-year 2018, two letters in 2019 and a single email and letter in May 2020. He as the applicant does not correlate this evidence in his own affidavit so that there is consistency and corroboration between him and the assertions of the lawyer. The latter is not an independent operator quite apart from the client therefore here the client will echo what is asserted by the lawyer. The letters are copies in the court file. If indeed the originals were addressed to the court, they are not on the court file. If they were consistently systematically channelled to expedite the matter, they all are not in their original form in the court file. There is no evidence of file search by the lawyer to ascertain what become of his letters for the whole year 2018 and then 2019 and finally it is getting on board for hearing 24^th May 2020. Surely if court staff at the registry are involved not over a week but two years or more leading to three it would be a concern the registrar would not sleep over. No staff would be still working where they are now if this was genuinely the case. Without any other evidence to support this is only a version that the counsel representing has raised but does not tie in with the whole matter set out above. In the final considering all it holds no water to favour the applicant’s cause of action.
   
9. And if the assertions by the applicant are to be believed there is no independent evidence corroborating either from the wife Anna Mondo together with their one year old daughter Kayleen Mondo, another friend Captain Alphonse Bige with his wife Elizabeth Bige, or a doctor or medical personal who attended to them as he professes above to verify and affirm what he contends that he indeed genuinely suffered at the hands of the Police. The extent of his injuries which he says prompted the military police to take matters to hand to confront police at Boroko is not there and before me. It makes his cause of action lacking materially because if he was not at fault why sustain charges process internally by law for ill discipline and discharge. He is clean he should not have been charged ever at all in the first place. It is independent evidence that will also assist the course whether indeed there was correspondence between his lawyer and the Registry to the eventual hearing of this matter. No men will endure hardship for a matter where evidence is clear, and he does not take the pain to bring it forward to seek the hand of justice. Either the evidence is not there, and he is making up to build nothing on nothing to achieve nothing.
   
10. These are not suppositions but matters apparent from the evidence that is being sought to be relied upon by the applicant. It will affect whether there was compliance with bringing the cause of action within time or outside of. Because there is no consistency between the version of the applicant in his affidavit no mention at all and the lawyer’s affidavit building up time to the detriment of the case of the applicant, it is not made out to the required balance. Time is delayed inordinately the originals of the supposed letters by the lawyer are not on the court file which has been opened since 15^th February 2018. What original letters on file are of the lawyer dated the 24^th May 2020 which is responded by the original from the office of the Deputy Registrar National Court Samuel Ikiso dated 25^th May 2020. And the court file has 9 documents officially numbered in that sequence and order none of which are the supposed letters deposed to by the lawyer set out above in the court file. Included there are no copies of the originals of the letters under hand of the Lawyer on record with endorsements by court staff of having sighted the letters because they are hand delivered in all cases except the one purportedly of the 24^th May 2020 by email. When a problem arises as here the lawyer would have court staff receiving endorsed proof that they have cited it so that it gives credence to the cause of the applicant assisted by the lawyer. There is no record to this effect to the letters set out above. Especially so when a second lieutenant is terminated of his services from the defence force here. He would be concerned about his work and life and will keep track of all. In this regard there is no medical report on the extent of injuries and sufferings he his family and friend suffered at the hands of the police. There is also no evidence from his friend Captain Alphonse Bige with his wife Elizabeth Bige. Presumably the former is a member of the defence force but does not have his evidence to verify and to give credence to what is contended to be by the applicant. These are essential evidence without which the assertion of the applicant falls short of the balance required to sustain his case.
    
11. What is essential against reliance on the evidence of Martin Kombri by his affidavit dated the 26^th May 2020 is that it is inconsistent in material particulars which are pointed out above. And this material particulars are such that they effect the veracity of his evidence. It would be unsafe and unsatisfactory to rely upon it to determine that issue of compliance with time. It is now inconsistent with the affidavit of the applicant and will be resolve in that the court will accede to evidence that is uncontested which is not the case of the affidavit of Martin Kombri: In the Matter of The Organic Law on National and Local Level Government Elections, Pato v Kaiulo, Electoral Commissioner of Papua New Guinea [2003] PGNC 67; N2455 (29 August 2003). It means the contested fact of time delay remains unsettled and is not proved in the contention of the applicant.
    
12. It is not the case here. The totality of all is that there is inordinate delay out of the four months by order 16 rule 4 here it is well over three years counting back to 2017. In my view this ground is not made out to the required balance in favour of the applicant to sustain that he has brought his cause of action within time. Here the evidence he relies on is not reliable by itself. The ground fails as a result.
    
13. The extension of this finding is that there would be substantial hardship and prejudice caused to the defendants in their administration of the Papua New Guinea Defence Force. In particular there would be prejudice of the rights of officers or men there who have since taken over from where the applicant has been terminated of his services, as a second lieutenant including those who are now marked to take all that comes with that office. The work of the Papua New Guinea defence Force must continue with discipline and distinction. Because to give heed to the application of the applicant will be detrimental to its good administration given the time taken initially from 18^th October 2017 to today 11^th June 2020: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). And this court will be reluctant to accede to the pray of the applicant.
    
14. The internal process in the settlement of a disciplinary matter within the Defence Act 1974 are set out fulfilling and the particulars of the affidavit deposed to by the applicant set out above show this process that has been run eventually to his demise in the defence force. What is described by the affidavit of the applicant is consistent with adherence to the Defence Act 1974. Particularly processing of charges and the like in a military court martial. He has been suspended after being charged with seven different charges. Which have been processed in a military court martial to a final verdict. In all cases he has been told of what he is being charged with and given an opportunity to respond to defend himself. This is consistent with the Defence Act 1974 particular Parts include Part vii Terms and Conditions of Service, Part ix Service Law and Discipline which are pertinent to the issue here. Internal disciplinary procedure has been followed consistent with the Defence Act 1974 and there is no room to say otherwise. He has come to court following and therefore qualifies on this ground: Innovest Ltd (supra).
    
15. But the question is, is there arguable case demonstrated to sustain leave in his favour. From the discussion set out above, there is no arguable case demonstrated because administrative process is not in a vacuum but based upon law: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). Here the facts and discussion above show consistency and adherence with the Defence Act 1974 in the process that has led to his demise. He stands dismissed by law and there is no arguable case to grant leave to explore and settle. By itself leave is discretionary and there ought to be proper basis established prima facie to invoke. Here this ground is not made out in favour of the applicant. But he has standing in accordance with Somare, Re [1981] PNGLR 265 (3 August 1981). Applicant has demonstrated to the required balance prima facie that he has standing in law given his facts. Without the other grounds in his favour this ground does not advance his cause of action.
    
16. In the total I am not satisfied on the balance of probabilities on the material that he has presented for leave to be accorded him to apply for Judicial Review.
    
17. Accordingly, his motion for leave is refused with costs to follow the event.

Orders Accordingly.

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Kombri & Associate Lawyers : Lawyers for the Plaintiff/Applicant

No appearance for the Defendants