N9384
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 246 OF 2021

MAJOR ALBERT NAWARA
Plaintiff

V

LIEUTENANT COLONEL H LANGE, ACTING CHIEF OF PERSONNEL, PAPUA NEW GUINEA DEFENCE FORCE
First Defendant

CAPTAIN (NAVY) PHILIP POLEWARA, CHIEF OF STAFF,
PAPUA NEW GUINEA DEFENCE FORCE
Second Defendant

MAJOR-GENERAL GILBERT TOROPO, COMMANDER,
PAPUA NEW GUINEA DEFENCE FORCE
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J
2021: 23rd, 28th December
2022: 7th January

STATE SERVICES – Defence Force – membership of Defence Force – status of member holding short service commission whose commission not renewed – status of person treated and paid as member of Defence Force for 24 years after expiry of short service commission – whether necessary for formal discharge to be effected prior to cessation of salary and membership entitlements. 

The plaintiff was enlisted in the Papua New Guinea Defence Force in 1988 on a short service commission for an initial period of three years. That commission was not renewed upon its expiry and has never been renewed. The plaintiff has not at any time held a permanent commission. Despite not formally holding any commission, the plaintiff was treated for all intents and purposes as a member of the Defence Force and promoted within the Regular Force to the rank of Major and paid according to the ranks that he held from time to time. He was advised on several occasions of the need to regularise his service, failing which he would be discharged. On 29 October 2015 he was removed from the payroll. He has never been returned to the payroll. On 26 October 2019 the Commander of the Defence Force issued a military signal, by which the plaintiff was discharged. The plaintiff does not contest his discharge from the Defence Force with effect from 26 October 2019 but is aggrieved by his removal from the payroll. He seeks: (i) a declaration that he was unlawfully removed from the payroll on 29 October 2015; (ii) and (iii) unpaid salary and other entitlements due in respect of the rank of Major for the period from 29 October 2015 to 26 October 2019; (iv) all final entitlements due in respect of the period from his date of recruitment in 1988 to 26 October 2019; (v) compensation of K10,000.00 under s 23(1) of the Constitution; (vi) special damages of K157,365.60; and (vii) general damages for emotional and psychological stress etc. The plaintiff claimed that he continued to work, without being paid, from 29 October 2015 to 26 October 2019. 

Held:

(1)	The plaintiff’s removal from the payroll on 29 October 2015 was not unlawful as, though he was treated as being a member of the Defence Force, he was not formally a member of the Defence Force at any time from the date of expiry of his short service commission in 1991 to 29 October 2015. He could be lawfully removed from the payroll at any time. The complaint that this was done without notice was met by evidence that the plaintiff had been warned on several occasions of the need for him to regularise his service.

(2)	Responsibility for regularising the plaintiff’s service record rested equally with the Defence Force and the plaintiff. 

(3)	There was no credible evidence to support the assertion that the plaintiff worked without pay after 29 October 2015. 

(4)	All claims for relief were refused and the proceedings were dismissed. Parties were ordered to bear their own costs due to the slipshod manner in which the defendants had dealt with the plaintiff over a long period. 

Cases Cited

No cases are cited in the judgment. 

Counsel

C I W Jaminan, for the Plaintiff
R Kebaya, for the Defendants

7th January, 2022

1.      CANNINGS J: The plaintiff, Albert Nawara, is a former member of the Papua New Guinea Defence Force. He claims unpaid salary and other entitlements and damages in respect of his alleged unlawful removal from the payroll on 29 October 2015. He was paid nothing between that date and 26 October 2019, when the Commander of the Defence Force issued a military signal formally discharging him from the Defence Force. 

2.     The plaintiff was enlisted on 17 March 1988 on a short service commission for an initial period of three years. That commission was not renewed upon its expiry and has never been renewed. The plaintiff has not at any time held a permanent commission. Despite not formally holding any commission, the plaintiff was treated for all intents and purposes as a member of the Defence Force and promoted within the Regular Force to the ranks of Lieutenant, Captain and Major and paid according to the ranks that he held from time to time. He was at all times from the date of enlistment to 29 October 2015 performing duties and functions within the Engineering Battalion of the Defence Force. 

3.    He was advised on several occasions of the need to regularise his service, failing which he would be terminated or discharged. The most recent letter of advice to that effect, which is in evidence, was from Chief of Personnel, Colonel M B G Goina DMS, MBE, dated 24 November 2013, which stated, after referring to s 10(2)(c)(iii) of the Defence Force (Period of Service) Regulation 1977, amongst other things:

In addition, you are still a Short Service Commissioned Officer. According to our records you have neither renewed your SSC nor been granted a permanent commission yet. 

In view of the above, I am now directing that you reply to me in writing within fourteen (14) days, before 28th November 2013, to Show Cause to me why your SSC in the PNGDF should not be terminated. Failing that, I will be recommending for your SSC to be terminated by Commander, PNGDF …

4.      The plaintiff does not contest his discharge from the Defence Force with effect from 26 October 2019 but claims that his removal from the payroll without notice on 29 October 2015 was unlawful. 

RELIEF SOUGHT 

5.     The plaintiff seeks, pursuant to an amended statement of claim filed 28 August 2021: 

(i) a declaration that he was unlawfully removed from the payroll on 29 October 2015; 

(ii) and (iii) unpaid salary and other entitlements due in respect of the rank of Major for the period from 29 October 2015 to 26 October 2019; 

(iv) all final entitlements due in respect of the period from his date of recruitment in 1988 to 26 October 2019; 

(v) compensation of K10,000.00 under s 23(1) of the Constitution for prohibited actions by the defendants; 

(vi) special damages of K157,365.60 (being for maintenance to military housing, loss of personal property during break and enter incidents, children’s school fees, health expenses and engineering licence fees); and 

(vii) general damages (for loss of promotional opportunities, lost expectation for promotion, loss of education and training opportunities, loss of expectation for further education and training), emotional and psychological stress, pain and suffering, lost opportunity to purchase family home, living in dilapidated military accommodation, loss of recognition for delivering government approved projects during peacetime under a short service commissioned officer contract). 

6.     The plaintiff asserted through his lawyer that he continued to work, without being paid, from 29 October 2015 to 26 October 2019. 

ISSUES

7.     The following issues arise from the relief sought by the plaintiff:

1	Was the plaintiff’s removal from the payroll on 29 October 2015 unlawful?

2	Should the plaintiff be paid salary and other entitlements in respect of the period from 29 October 2015 to 26 October 2019?

3	Should the plaintiff be paid his final entitlements in respect of the period from his date of recruitment in 1988 to 26 October 2019?

4	Should the plaintiff be paid compensation under s 23(1) of the Constitution?

5	Should the plaintiff be awarded special damages?

6 	Should the plaintiff be awarded general damages?

7	What declarations or orders should the Court make?

1	WAS THE PLAINTIFF’S REMOVAL FROM THE PAYROLL ON 29 OCTOBER 2015 UNLAWFUL?

8.     The plaintiff argues that it was unlawful to remove him from the payroll as he was still a serving member of the Defence Force until 26 October 2019. He could not be arbitrarily removed from the payroll prior to his date of discharge. He claims through the submissions of his lawyer, Mr Jaminan, that he continued to work in the period after 29 October 2015, despite not being paid.

9.     This raises the question of whether, in fact and/or in law, the plaintiff was a serving member of the Defence Force.

10.     As for the facts, I find that the plaintiff was a de facto member of the Defence Force from the date of enlistment in 1988 to 29 October 2015. However, he held no commission from 1991 to 2015 and was not formally a member of the Defence Force. I reject the assertion that he continued to work after 29 October 2015. There is no evidence to support it. The only evidence is that the plaintiff was given some travelling allowance and a return ticket from Port Moresby to Mt Hagen and instructions to go to Jiwaka Province to supervise construction of new military barracks. There is no evidence that he actually took up that posting or did any work at all. It is very difficult to believe that a man could continue to work for any substantial length of time without being paid. 

11.     As for the legal position of the plaintiff, s 2(1) of the Defence Force (Period of Service) Regulation provides that officers in the Regular Force hold either permanent commissions or short service commissions. The evidence shows clearly that after expiry in 1991 of the short service commission he held for three years after enlistment in 1988, the plaintiff held neither a short term commission nor a permanent commission. He was not, as a matter of law, a member of the Defence Force. 

12.     It was argued that, because the plaintiff was not formally removed from the Defence Force upon expiry of his three-year commission, he should be regarded as having continued his commission, which could then only be terminated by the “appropriate authority” under s 10(2)(c) of the Defence Force (Period of Service) Regulation, which in his case was the Commander of the Defence Force. I reject that submission. There is no provision in any law for automatic renewal of a short service commission. The plaintiff had no commission and no “service” capable of being terminated under s 10(2)(c) of the Regulation. 

13.     It follows that the plaintiff’s removal from the payroll on 29 October 2015 was not unlawful. Though he had been treated as being a member of the Defence Force, and remarkably remained a de facto member of the Defence Force for 24 years without holding any commission, he was not formally a member of the Defence Force at any time from the date of expiry of his short service commission in 1991 to 29 October 2015. He could therefore be lawfully removed from the payroll at any time. 

14.     The plaintiff argues that though he was reminded from time to time of the need to regularise his service, it was not his responsibility to attend to this formality. It was the responsibility of the Defence Force. I consider that that contention is half-correct. The correct position is that persons such as the plaintiff, who do not hold any commission in the Force but who are de facto members of the Defence Force because they are treated as members, and the Defence Force hierarchy, have a shared responsibility to ensure that members who are treated as members of the Defence Force hold either a permanent or a short service commission.

15.     However, whatever view of where responsibility lies in situations such as this, the plaintiff’s position at law is that he was not a member of the Defence Force at the time he was removed from the payroll. He could be removed from the payroll at any time.

16.     The complaint that this was done without notice is met by evidence that the plaintiff had been warned on several occasions of the need for him to regularise his service. He ignored the warnings and has suffered the inevitable consequence of being without pay. I refuse to declare that his removal from the payroll on 29 October 2015 was unlawful. 

2	SHOULD THE PLAINTIFF BE PAID SALARY AND OTHER ENTITLEMENTS IN RESPECT OF THE PERIOD FROM 29 OCTOBER 2015 TO 26 OCTOBER 2019?

17.     No. I would only order that he be paid for this time if there were credible evidence that he was gainfully engaged in work for the Defence Force in that period. But there is none.

3	SHOULD THE PLAINTIFF BE PAID HIS FINAL ENTITLEMENTS IN RESPECT OF THE PERIOD FROM HIS DATE OF RECRUITMENT IN 1988 TO 26 OCTOBER 2019?

18.     This is a vague claim. There is a general pleading in the amended statement of claim for final entitlements, without particulars as to what is actually claimed. The claim has not been crystallised in submissions. I refuse to make the order sought. 

4	SHOULD THE PLAINTIFF BE PAID COMPENSATION UNDER S 23(1) OF THE CONSTITUTION?

19.     This is another vague claim. Section 23(1) (sanctions) of the Constitution provides:

Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a)	impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
(b)	in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

20.     Mr Jaminan submitted that the plaintiff was treated so poorly, it amounted to a breach of his human rights under s 36 (freedom from inhuman treatment) and s 37 (protection of the law) of the Constitution. I reject that submission. The plaintiff was not treated poorly at all. He was warned time and again he needed to get his service record fixed up. For 24 years he left that issue unresolved. He worked in that period and was paid for his work and afforded service entitlements as if he were lawfully holding a commission in the Defence Force, even though he was not. He is in no good position to complain about being removed from the payroll on 29 October 2015. There was no breach of human rights and no good reason to award the plaintiff compensation under s 23(1) of the Constitution.

5	SHOULD THE PLAINTIFF BE AWARDED SPECIAL DAMAGES?

21.     No. The plaintiff has failed to establish any cause of action warranting an award of special damages.

6 	SHOULD THE PLAINTIFF BE AWARDED GENERAL DAMAGES?

22.    No. The plaintiff has failed to establish any cause of action warranting an award of general damages.

7	WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

23.     These proceedings will be entirely dismissed. Costs would normally follow the event. However, because of the slipshod manner in which the Defence Force, represented in these proceedings by the first, second and third defendants, dealt with the plaintiff, allowing him to serve for 24 years without holding any commission – which is extraordinary – the interests of justice are best served by allowing the parties to bear their own costs. 

ORDER

(1)	The proceedings are dismissed and the relief sought by the plaintiff is refused.

(2)	The parties shall bear their own costs of the proceedings. 
__________________________________________________________________
Jaminan & Partners Lawyers:  Lawyers for the Plaintiff		
Solicitor-General: Lawyer for the Defendants