Kalaut v Clarkson [2022] PGNC 336; N9810 (2 August 2022)

N9810

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 178 OF 2021 (IECMS)

BETWEEN:

SYLVESTAR KALAUT

- Plaintiff-

AND:

JOANNE CLARKSON

ACTING DEPUTY COMMISSIONER OF POLICE

-First Defendant-

AND:

KOANI ARUA TARUPA

CONSTABLE OF POLICE

-Second Defendant-

AND:

DAVID MANNING

COMMISSIONER OF POLICE

-Third Defendant-

AND:

DONALD YAMASOMBI

ACTING DEPUTY POLICE COMMISSIONER

-Fourth Defendant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fifth Defendant-

Waigani: Tamade AJ

2022: 29^th April, 2^nd August

EQUITY- Order 12 Rule 40- principles of res judicata and estoppel- abuse of process- Civil Court deciding matters before the Criminal Court- section 37 of the Constitution- Section 155(4) of the Constitution- principles of equity as part of the Underlying Law and interest of justice principle

Cases Cited:

Kalaut v Manning [2021] PGNC 49; N8744

Jimm Trading Ltd v Maddison [2017] PGNC 109; N6749

Nema v Rural Development Bank Ltd [2013] PGSC 15; SC1243

Pius Pundi v Chris Rupen [2015] PGSC 29; SC1430

Counsel:

Mr Sylvestar Kalaut, Plaintiff in Person

Mr Clayton Joseph, for the First, Second, Third and Fourth Defendant

Ms Batsheba Kulumbu, for the State

2^nd August, 2022

1. TAMADE AJ: The Plaintiff is a lawyer by profession and represents himself in this matter. He is a career policeman having served in the Royal Constabulary of PNG for over twenty-four years and has served as the Assistant Commissioner of Police.
   
2. On 2 January 2020, the Plaintiff was suspended from official duty consecutively four times being for 21 days after each expiry of 21 days having been suspended for a total of 84 days of suspension. On 25 March 2020, the Plaintiff was served with a Notice of Termination of his Employment. The Plaintiff then applied for judicial review challenging his termination in proceedings described as OS (JR) No. 29 of 2020 on 17 July 2020.
   
3. On 2 February 2021, Justice Makail sitting in the National Court made orders that the Plaintiff’s termination was unlawful as the Commissioner of Police, Mr David Manning had acted in excess of his powers and that there was an abuse of process in the termination of the Plaintiff’s contract of employment and contrary to the relevant provisions of the Police Act. The decision of Justice Makail was made on 2 February 2021 and can be found in in the reported case of Kalaut v Manning [2021] PGNC 49; N8744 (2 February 2021). The Plaintiff was therefore reinstated to the position of Assistant Commissioner of Police- Human Resources.
   
4. On 15 February 2021, about two weeks after the National Court’s decision to reinstate the Plaintiff to work, the Plaintiff resumed work and reported for duties when the Plaintiff was again suspended from work on 4 March 2021 to 25 March 2021 for the fifth time. On 5 May 2021, the Plaintiff received an email from Ms Joanne Clarkson, the Acting Deputy Commissioner of Police that his suspension would be for an indefinite period whilst on full pay.
   
5. The Plaintiff was subsequently charged whilst on suspension with Serious Disciplinary charges on 7 April 2021. The Plaintiff responded to the serious disciplinary charges on 28 April 2021 however a decision on the Serious Disciplinary Charges was yet to be given when the Plaintiff was served a letter from Mr David Manning the Commissioner of Police that he has no intention of renewing the Plaintiff’s contract of employment which had expired. The Plaintiff submits that there are no good reasons given by Mr Manning in not renewing the Plaintiff’s contract of employment as the Plaintiff is still awaiting an outcome of the Serious Disciplinary Charges.
   
6. The Defendants however submit that the Plaintiff’s contract of employment was for a period of three years commencing on 10 October 2018 and expired on or about 9 October 2021. The Defendants submit that the Plaintiff’s contract has not been renewed and therefore he is no longer a police officer as he was not re-appointed as a member of the Police Force.
   
7. The Defendants also submit that the Plaintiff was committed to stand trial in the National Court on 8 December 2020 in criminal proceedings. The Second Defendant Constable Koani Arua Tarupa was the Arresting Officer who laid the criminal charges against the Plaintiff and compiled the police hand up brief for the committal hearing. The criminal proceedings in which the Plaintiff was charged with the offences the subject of his fifth suspension is yet to be determined by the Court.
   
8. The Plaintiff’s claim pursuant to the Originating Summons filed on 16 August 2021 seeks the following orders as summarised.
   
   1. A declaration that the four notices of suspension issued by the First Defendant to the Plaintiff on or about 27 December 2019, and on or about 27 December 2019, and on or about 5 March 2020 are null and void;
   2. A declaration that the fifth notice of suspension dated 26 February 2021 and the notice of indefinite suspension dated 5 May 2021 issued by the First Defendant to the Plaintiff are null and void;
   3. A declaration that the two serious disciplinary charges dated 7 April 2021 laid by the First Defendant against the Plaintiff is null and void;
   4. A declaration that the investigation report (which is the police hand up brief) compiled by the Second Defendant, Detective Constable Koani Arua Tarupa as a member of the Police Force is null and void;
   5. A declaration that the re-appointment of the Second Defendant, Detective Constable Koani Arua Tarupa as a member of the Police Force is null and void.
      
9. The Defendants argue that the Plaintiff has not sought an order for damages or an order for re-appointment as a member of the Police Force and therefore the Plaintiff’s claim has no utility and is an abuse of process.
   
10. The Defendant also move on their application by way of a Notice of Motion filed by the First, Second, Third and Fourth Defendants on 12 November 2021 that these proceedings should be dismissed pursuant to Order 12 Rule 40 (1)(a), (b) and (c) of the National Court Rules as the declaratory orders sought herein have no practical utility, that the matters in regard to the notices of suspension which culminated in the decision dated 19 March 2020 of the Third Defendant were matters considered in OS (JR) No. 29 of 2020 and a final determination was made on 2 February 2021 and those matters are res judicata, that the challenge to the investigative report compiled by the Second Defendant in the criminal proceedings and the re-appointment of the Second Defendant who prepared the hand up brief are matters that go towards the criminal proceedings are an abuse of the process of the Court to raise it in these civil proceedings.
    
11. The Defendants therefore state that these proceedings do not disclose a reasonable cause of action and it is frivolous and vexatious within the meaning of Order 12 Rule 40 of the National Court Rules as the claim is untenable as against the Defendants and harasses them into unnecessary trouble of defending such proceedings.
    
12. I therefore address the issues raised by the First, Second, Third and Fourth Defendants in their application for dismissal.
    

Are the matters regarding the first 4 suspension notices res judicata in light of the decision of OS(JR) No. 29 of 2020?

13. The Plaintiff in his first declaratory relief seeks that pursuant to sections 17, 19(1) and 28 (1) (a) and (b) and section 133 of the Police Act, Schedule c4, Clause 17 of the Plaintiff’s contract of employment, that the four Notices of Suspension issued by the First Defendant is without lawful written authority from the Commissioner of Police that these four notice of suspensions dated 27 December 2019, 24 January 2020, 14 February 2020 and 5 March 2020 respectively are unlawful, null and void and of no effect ab initio.
    
14. The Plaintiff essentially claims that Ms Joanne Clarkson was not lawfully authorised, appointed or delegated the authority by the Commissioner of Police Mr David Manning to suspend the Plaintiff from official duty as of the four respective dates.
    
15. In regard to these notices of suspensions being res judicata, the Defendants rely on the case of Jimm Trading Ltd v Maddison^[1] where the Court stated that:
    

“In summary, a claim of res judicata will be made out if a defendant is able to establish that the:

(a) parties or their privies in an earlier proceeding and a later one are the same;

(b) issues in both matters are the same;

(c) previous judgment or decision is final and conclusively determined all issues presented; and

(d) previous decision was by a court of competent jurisdiction.

On issue estoppel, although related to res judicata, it arises where the:
(1) same question was or could have been decided in both proceedings;
(2) judicial decision said to create the estoppel was final; and

(3) parties to the earlier proceeding were the same persons or their privies as the parties to the proceeding in which the estoppel is raised or their privies.

16. The principles of res judicata are also discussed in the Supreme Court case of Nema v Rural Development Bank Ltd [2] where the Court stated that:

“...In his decision in WS 391 of 2012 Hartshorn J observed that res judicata is a legal doctrine recognised by Schedule 2.8 (1)(d) of the Constitution and referred to principles explained by Bredmeyer J in Herman Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR, 74 and noted by the Supreme Court in Yama v PNGBC Limited (2008) SC 922. In Herman Gawi Bredmeyer J stated that six probanda must be established by a party setting up res judicata, namely:

1. was the earlier decision a judicial decision?
2. was the judicial decision pronounced?
3. did the judicial tribunal have competent jurisdiction?
4. was the judicial decision final?
5. did the judicial decision involve the determination of the same question?
6. are the parties the same?
   

17. I accept the submissions by the First to the Fourth Defendants that matters as to the four suspension notices dated 27 December 2019, 24 January 2020, 14 February 2020 and 5 March 2020 were considered by the Court leading to the Court’s determination in OS(JR) 29 of 2020 whereby the Court reinstated the plaintiff to his employment. Though I see the Plaintiff has asked a different question in terms of the declaration that he seeks that the First Defendant had no lawful authority to issue those suspension notices, the utility of that question is answered in the Court reinstating the Plaintiff to his employment in OS (JR) 29 of 2020.
    
18. I therefore find that the parties to these proceedings are the same parties generally however the claim is essentially similar as against the Commissioner of Police as the head of the PNG Police Constabulary and the State, the issues raised in the declaration sought by the Plaintiff is already determined in OS (JR) 29 of 2020 as to the Plaintiff ‘s reinstatement as to my mind, the decision in OS (JR) 29 of 2020 covers matters collaterally and which culminated in the Plaintiffs termination and the Court’s finding reinstating the Plaintiff to his employment.
    
19. I uphold the submissions by the Defendants that seeking the first declaratory relief in this way over matters that are now water under the bridge being the decision of OS (JR) 29 of 2020 is an abuse of process and the Plaintiff is estopped from raising this issue as to these four notices of suspensions as there is no utility of raising these in this proceedings.
    
20. I therefore dismiss the first relief sought in the Plaintiff’s Originating Summons.
    

Will the declaratory orders sought in terms 2, 3, 4, 5 and 6 of the Originating Summons determine the issues of fact and law in the criminal proceedings against the Plaintiff?

21. On 8 December 2020, the Committal Court at Waigani committed the Plaintiff to stand trial in the National Court for serious criminal charges as to:
    
    1. One count of abuse of office contrary to section 92(1) of the Criminal Code Act
    2. Two counts of misappropriation contrary to section 383A of the Criminal Code Act and
    100. One count of conspiracy to defraud contrary to section 407 (1)(b) of the Criminal Code Act.
         
22. The Defendants therefore submit that the Plaintiff was suspended from office for 21 days from 3 March 2021 and the suspension was extended for an indefinite period pending the determination of the criminal proceedings in accordance with section 32 of the Police Act.
    
23. It is the Defendants submissions that the declaratory reliefs sought herein from Terms 2, 3, 4, 5 and 6 seeks to declare the suspension notice of 3 March 2021 unlawful which the basis is the criminal proceedings, the orders sought in terms of the hand up brief or the investigating report and the appointment of Detective Constable Koani Arua all go towards the maters now before the Criminal Court as to the criminal charges against the Plaintiff.
    
24. I accept the submissions by Mr Joseph of the First, Second, Third and Fourth Defendants that to delve in these matters basically opens the door for this Court to consider matters now before the Criminal Court. The law is clear on this issue as in the case of Pius Pundi v Chris Rupen^[3] where the Supreme Court said that:
    

“...An accused person facing trial in criminal proceedings who commences civil proceedings in the same court for the purpose of obtaining a determination of questions of law or fact that are at issue in the criminal proceedings will almost invariably be regarded as having engaged in an unnecessary proceeding, giving rise to an abuse of process. This principle was recently affirmed by the Supreme Court in Eremas Wartoto v The State (2015) SC1411.

Here, the appellant, having commenced civil proceedings for the purpose of obtaining declarations that he hoped would determine issues in his favour in the criminal proceedings, did not exhaust the avenues for ventilating and determining those issues in the criminal proceedings. He engaged in unnecessary proceedings and this was an abuse of process.”

25. I will therefore refuse the orders sought in terms 2, 3, 4, 5 and 6 of the Statement of Claim.
    

What is the real controversy as between the parties?

26. I pose this question as the Court is tasked to do justice in a case. The Plaintiff clearly aggrieved by the manner in which the Defendant’s have terminated his employment is now before this Court seeking redress as to the manner in which he was suspended and even after the Court granted him reinstatement to his employment, Mr David Manning has seen fit to throw him out in the cold so to speak by refusing to extend the Plaintiff’s contract whilst the criminal proceedings run its course.
    
27. I take a helicopter view of the totality of the Plaintiff’s case, he was suspended four times, came to Court and was granted reinstatement to his employment, few weeks into his reinstatement, he was again suspended for the fifth time and subsequently his suspension was made indefinitely up until the Commissioner of Police decided that his contract of employment will not be renewed whilst he defends criminal charges laid against him and now before the Criminal Court.
    
28. There is clearly a taint of ill will between the leadership of the Royal PNG Constabulary and the Plaintiff who also holds a senior leadership position in the manner of his termination which was discussed by Justice Makail in OS (JR) 29 of 2020 and the follow-on circumstances after his reinstatement now before this Court. I form this conclusion after reading the Affidavit of the First Defendant, Ms Joanne Clarkson, the Acting Deputy Commissioner of Police in her Affidavit sworn on 12 November 2021 and tendered as Exhibit D1. Ms Clarkson refers in her evidence to the first four notice of suspensions issued to Mr Kalaut which was determined in OS(JR) 29 of 2020 and which were in regard to charges of insubordination. She states in her Affidavit that she received instructions from Mr Manning following the Court Orders of OS (JR) 29 of 2021 to give notice to Mr Kalaut about his reinstatement as per the Orders of the Court. Ms Clarkson then informed Mr Kalaut he should report for official duty and report to her office on 8 February 2021. On 8 February 2021, Mr Kalaut met Ms Clarkson in the company of Mr Donald Yamasombi and during that meeting, Ms Clarkson handed to Mr Kalaut a copy of his reinstatement letter. On receipt of the letter, Mr Kalaut then requested if he could resume duties after the determination of the Supreme Court proceeding SCM No.10 of 2021(IECMS) which is an appeal against the decision of Justice Hartshorn to quash the appointment of Mr Manning as the Commissioner of Police and Secretary for the Department of Police. Ms Clarkson responded to Mr Kalaut that Mr Manning would need to consider his request. I depict some rivalry between Mr Kalaut and Mr Manning as to the positions in the leadership of the PNG Royal Constabulary.
    
29. In the Affidavit of Mr Manning sworn on 12 November 2021 and tendered as Exhibit D3, Mr Manning states that Mr Kalaut’s contract of employment commenced on 10 October 2018 and was for a period of three years. It expired on 9 October 2021. Mr Manning attached a copy of his letter dated 23 December 2021 to Mr Kalaut advising Mr Kalaut that (emphasis underlined):
    

“As per the recommendations made by the Royal PNG Constabulary Contract Review Committee dated 15 December 2021, I have no intention of renewing your Contract of Employment thus, I thank you for your services to the Constabulary and wish you well in your future endeavours.”

30. The rivalry between Mr Manning and Mr Kalaut is evident again in those words above in the letter by Mr Manning. A copy of the recommendation by the Royal PNG Constabulary Contract review Committee dated 15 December 2021 is not attached to the letter in evidence and therefore the Court does not have the benefit of that evidence to see who constituted that Committee and what was the recommendation.
    
31. Be that as it is, I am of the view that the Plaintiff has a constitutional right to the full protection of the law under section 37 of the Constitution. The Plaintiff is presumed innocent until proven guilty as to the charges levelled against him that are now before the Criminal Court.
    
32. It is also my firm opinion that Constitutional Office Holders including Ms Joanne Clarkson as the Acting Deputy Commissioner and Mr David Manning as the Police Commissioner including other Constitutional Office holders and or people who serve the high echelons of State or Public Service sit on positions of power vested by the Constitution of PNG and therefore ultimately by the people of the Independent State of PNG. Regardless of personal prejudices, the discharge of the functions of these high public offices not to mention those like the Royal PNG Constabulary that enforces the laws of this country in a disciplined force should be seen to be carrying out the functions of justice and fairness and should take into account relevant and appropriate considerations in the discharge of those duties and this should be extended to those who serve in that very office like the Plaintiff, an employee, a law enforcement officer, a career public servant who is a lawyer, he should be accorded the right to the full protection of the law under section 37 of the Constitution and be allowed to defend criminal charges the outcome of which should determine his continuity of service to the Police Force.
    
33. High offices of public trust should not be discharging idiosyncratic decisions without rhyme or reason or tainted with malice and ill will. The letter by Mr Manning dated 23 December 2021 refusing to extend the employment contract of the Plaintiff is to my mind a very inexplicably personal letter.
    
34. It is therefore unjust to refuse the orders sought by the Plaintiff in the Originating Summons and not seize the issue that is starring glaringly before the Court, has the Plaintiff been treated unfairly and in a prejudiced manner by the Defendant?. The Defendants are entitled by law to suspend the Plaintiff on full pay and charge him for the various criminal charges. The Plaintiff is also entitled to the full protection of the law to his innocence and to defend himself as his constitutional right and he should be given this opportunity. A decision as to his employment as a member of the Police Force should be reached thereafter as his suspension is contingent upon the outcome of the criminal charges now before the Criminal Court
    
35. Mr Manning’s letter refusing to extend the Plaintiff’s contract to my mind is without any reasonable sound logic coming from his high office as the Head of the Police Force. The Plaintiff is an officer that has served Mr Manning as his superior and had served the State. Mr Manning simply makes up his mind to throw the Plaintiff out onto the streets and fend for himself so to speak whilst he defends his integrity in the criminal proceedings but forgets that it is not his mind, it is the mind of the office he holds, it is the mind of fairness, reasonableness and the exercise of the power by the people of PNG, a decision that must be far removed from his personal prejudices, notwithstanding that Mr Kalaut may also have those personal prejudices and ill will towards Mr Manning, the office as the head of the Royal PNG Constabulary must be seen to be fair from any bystander looking in as to the exercise of his power, lest he forgets, lest every public servant serving the Independent State of PNG forgets, public service duties are one of immaculate loyalty, upright vigour and unwavering call to the values of honour, justice, fairness and integrity of the office public servants hold and serve in the interest of the people of PNG.
    
36. This Court is vested with the powers under section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules to make such orders as are appropriate to do justice in a case. This is one such case where justice is not served allowing the Plaintiff to go empty handed with his employment issue unresolved when there is clearly an injustice in his employment. The hands of justice are that of law and of equity. Equity is part of the Underlying law of this land under Schedule 2.2 of the Constitution, it is therefore equitable to make this order consistent with section 37 of the Constitution. This Court invokes the principle of equity that equity will not suffer a wrong to be without a remedy. To my mind, equity demands that the Plaintiff should be allowed to serve as a police officer but suspended as per his notice of suspension dated 26 February 2021 and further extended on the same terms and conditions of his contract of employment until the finding of the Criminal Court as to the relevant criminal charges laid against him.
    
37. I therefore make the following orders:
    
    1. Terms 1, 2, 3, 4, 5 and 6 of the Originating Summons is refused.
       
    2. Pursuant to section 155(4) of the Constitution of PNG and Order 12 Rule 1 of the National Court Rules, the decision by the Third Defendant Mr David Manning refusing to extend the Plaintiff’s employment contract in a letter dated 23 December 2021 with the Royal PNG Constabulary is set aside.
       
    3. The Plaintiff shall continue to serve as a police officer under suspension as per the notice of suspension dated 26 February 2021 and as extended, under the terms of his contract of employment which commenced on 10 October 2018 and he shall receive all due salary and benefits until the findings of the Criminal Court in relation to the criminal charges against him.
    4. A finding of guilt and or otherwise in the criminal court shall determine the Plaintiff’s employment status in his position with the Royal PNG Constabulary.
       
    5. Each party shall meet their own costs of these proceedings.
       
    6. Time is abridged to the date of these proceedings to take effect forthwith.
       

Orders accordingly.

________________________________________________________________

Mr Sylvestar Kalaut: Plaintiff In Person

Ashurst PNG: Lawyers for the First, Second, Third and Fourth Defendants

Solicitor General’s Office : Lawyer for the Fifth Defendant

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^[1] [2017] PGNC 109; N6749 (2 June 2017)

^[2] [2013] PGSC 15; SC1243 (26 June 2013)

[3] [2015] PGSC 29; SC1430 (25 May 2015)