Kariko v Tatakali [2023] PGNC 331; N10492 (19 September 2023)

N10492

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 98 OF 2020

JACK KARIKO SECRETARY FOR THE NATIONAL JUDICIAL STAFF SERVICES
Plaintiff

V

SAMSON TATAKALI CHAIRMAN OF NATIONAL JUDICIAL STAFF SERVICE APPEALS TRIBUNAL
First Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

And
HARRY KUPI
Third Defendant

Waigani: Miviri J
2023: 13^th & 19^th September

PRACTICE & PROCEDURE – Judicial Review & Appeals – Substantive Notice of Motion – Sheriffs Officer Abuse of Authority & Misuse of Impounded Property – Dismissal – Appeal Allowed Setting Aside Dismissal – Appeal in Breach of Section 16 (7) NJSS Act Out of Time – Error of Law – Ultra Vires – Breach of Law – Declaration – Mandamus – Material Relied Sufficient – Judicial Review Granted – Certiorari Lies & Granted – Decision Brought into Court Quashed & Reissued as Originally Made – Third Defendant Dismissed Forthwith – Cost follow event.

Cases Cited:

Turaha & Ors v Hon Pok & ors [2023] PGSC 93; SC2433

Eu v Rosso & Ors [2023] PGSC 63; SC2401

Nining v Mann [2013] PGNC 153; N5338

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192

Counsel:

L. Dos, for Plaintiff
No appearance for State defendants

DECISION

19^th September 2023

1. MIVIRI, J: This is the ruling on the substantive notice of motion of the 28^th of October 2020 for Judicial review sought by the applicant against the defendants. He pleads that:
   
   • (i) A declaration be issued that the first defendant’s decision or ruling of the 27^th November 2019 to overturn the decision of the Plaintiff and impose a lesser penalty on the third defendant is illegal, null and void ab initio.
     
   • (ii) An Order in the nature of certiorari to remove into the National Court and quash the decision of the First Defendant made on 27^th November 2019.
     
   • (iii) Consequently, an order that the decision made by the Plaintiff on the 18^th June 2019, to dismiss the third defendant from the National Judicial Staff Services be brought into this Court and confirmed as a valid decision and for it to take effect forthwith.
     
   • (iv) Costs
     
   • (v) Such other orders as the Court deems appropriate in the circumstances.
     
2. Reliance is sought and placed on the affidavit of the Plaintiff sworn dated the 10^th March 2020 filed of the 13^th March 2020. In particular the office made the decision of the 18^th June 2019 to dismiss the third defendant from service for serious offences he committed in relation to illegal use or attempt to disposition of a vehicle that was seized as a result of warrant of execution. A Toyota Land Cruiser Parado registered number BBU 745 which he used personally without prior authorization. He was issued direction by the Assistant Registrar that he did not carry out pertaining. Several serious disciplinary charges came out which was processed drawing his termination and dismissal from the National Judicial Staff Services on the recommendation by the Plaintiff.
   
3. He appealed that decision on the 24^th July 2019. He was allowed by section 16 (7) of the NJSS Act, to have that appeal lodged within 14 days after the subject decision. The initial decision terminating his services was served on him on the 04^th July 2019. His appeal was lodged against it on the innocence and severity of penalty on the 24^th July 2019. It was outside the required period in which to do so of 14 days after the decision. He had done so in breach by six (6) days late. Despite it being filed late the appeal drew the decision in his favour in that he was reduced in his position and salary point to a lower one. He was ordered transferred out to another location. And that decision was based on section 16 (5) of the NJSS Act.
   
4. The challenge here is that the appeal should not have been heard, it was late by six (6) days. And therefore, it did not affect the decision by the plaintiff at first hand. Appeal was formally received on the 22^nd July 2019 annexure “J” to the affidavit of the plaintiff. On the 04^th July 2019 the decision terminating him by the plaintiff was delivered the third defendant annexure “I”. And the initial decision was made recommending termination on the 18^th June 2019, annexure “H”. And 14 days by section 16 (7) of the NJSS Act would see that indeed the third defendant was late in filing his appeal. It means there was no appeal within the terms of section 19 (1) (2) and (3) of the NJSS Act. Here that was what the third defendant did for his innocence and excessiveness of the penalty served on him. And which the appeals tribunal could confirm, annul, or vary the initial decision.
   
5. The appeal tribunal varied the decision on penalty and imposed that the third defendant be demoted in position and salary and serve somewhere other than the place where the disciplinary offence took place.
   
6. This decision is ultra vires section 16 (7) prescribing the appeal period as 14 days which the third defendant has breached to secure the decision now made as a result. It means the appeals tribunal did not have the jurisdiction to affect the decision it made. That decision can only be made in compliance of section 16 (7) of the NJSS Act not without. It would stand against the plaintiff in favour of the third defendant if it came following and within the period allowed for appeals to be made. Here it did not, it follows that the decision made in favour of the third defendant cannot be held against the plaintiff. There is no appeal lawfully before the appeals tribunal lodged by the third defendant and there is no decision in his favour flowing. The law has not been followed to come out with the decision and there is no decision in law binding upon the plaintiff in favour of the third defendant pursuant: Turaha & Ors v Hon Pok & ors [2023] PGSC 93; SC2433 (11 August 2023). In effect it is ultra vires and contrary to law and the procedure followed and is unlawful, hence the decision made will not stand: Eu v Rosso & Ors [2023] PGSC 63; SC2401 (2 June 2023) and Nining v Mann [2013] PGNC 153; N5338 (30 August 2013). Consequently, certiorari lies in favour of the plaintiff: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192 (1 July 1981) because process of law has not been followed. And therefore, the decision made at first instance by the appeals tribunal is brought into this Court and is quashed forthwith. In law therefore the decision at first instance now stands that the third defendant was dismissed by process of law. And he remains dismissed pursuant forthwith. Cost will follow the event against the Defendants.
   
7. The formal orders of the Court are:
   
   • (i) Declaration lies that the first defendant’s decision or Ruling of the 27^th November 2019 is illegal, null and void ab initio in overturning the decision of the plaintiff.
     
   • (ii) Certiorari lies in that the decision of the First Defendant of the 27^th November 2019 is hereby moved into this Court and quashed forthwith.
     
   • (iii) Consequently, the decision made by the Plaintiff on the 18^th June 2019 to dismiss the third defendant from the National Judicial Staff Services is brought into this Court and confirmed as valid and takes effect forthwith.
     
   • (iv) Costs follow the event against the Defendants.

Orders Accordingly.

__________________________________________________________________

Nicholas Tame Lawyers: Lawyers for the Plaintiff

Office of the Solicitor Generals: Lawyers for State Defendants