Kariko v Tatakali [2023] PGNC 332; N10493 (21 September 2023)

N10493

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 03 OF 2020

JACK KARIKO SECRETARY FOR THE NATIONAL JUDICIAL STAFF SERVICES
Plaintiff

V

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

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

And
MARY VAPUAK
Third Defendant

Waigani: Miviri J
2023: 14^th & 21^st 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 – Filed 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 – Third Defendant Dismissed Forthwith – Cost follow event.

Cases Cited:

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

Vakinap v Kambanei [2004] PGNC 264; N3094

Nining v Mann [2013] PGNC 153; N5338

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

Nining v Mann [2013] PGNC 153; N5338

Counsel:

L. Dos, for Plaintiff
H. Wangi, for Defendant

RULING

21^st September 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application seeking grant of declaration that the decision of the First Defendant dated the 28^th October 2019 is illegal, null and void ab initio.
   
2. Further that an order in the nature of certiorari lies to remove into the National Court the decision of the first defendant made on the 28^th October 2019 to be quashed forthwith.
   
3. Consequently, the decision made by the Plaintiff on the 23^rd March 2019 to dismiss the third defendant from the National Judicial Staff Services be brought into this Court and confirmed as valid and takes effect forthwith.
   
4. Costs of the proceedings to be borne out by the Second Defendant.
   
5. He relies on his affidavit sworn of the 17^th March 2020 filed the 22^nd April 2020. Relevantly he deposes that he is the Secretary of the National Judicial Staff Services (NJSS). In early May 2017 a complaint was lodged against the third defendant, a Senior Enforcement Officer with the Sheriff's Office Kokopo. It led to an investigation conducted by NJSS Legal officer Jaycel Kai who compiled annexure “A” a report of the 14^th December 2017. In it was the fact that the third defendant had sold a vehicle to her husband who was driving the said vehicle and they were using it. So on the 19^th February 2018 based on it the third defendant was charged with serious disciplinary offence of improper conduct in her official capacity as well as wilfully disobeying and disregarding a lawful order made or given to her by a person having authority to make or give the order or direction in that the third defendant had failed to submit the report of the sales of the vehicle when the Sheriff requested.
   
6. She responded to the charges on the 29^th February 2018 to the NJSS. Which was determined on the 23^rd March 2018 by the Plaintiff sustaining the charges and recommendations made to the Judicial Council for her dismissal from the service in heed to Section 16 (5) (e) of the NJSS Act 1987 (the Act). Notice of which was served by the plaintiff on the third defendant on 26^th March 2018.
   
7. The third defendant lodged an appeal following section 16 (7) of the National Judicial Staff Services Act. But has not complied with the 14 days prescribed in that her appeal is late as of the 09^th April 2018 when She was supposed to have lodged her appeal. She did so on the 12^th April 2018 and is therefore late by three (3) days. It means section 16 (7) of the NJSS Act is breached. Notice of the decision on the disciplinary Charge were served on her on the 26^th March 2018. Which notice clearly indicated to her that she had 14 days in which to lodge her appeal. And she would be deemed to admit the decision including the penalty. But despite this breach of the law the First Defendant determined the appeal in favour of the third Defendant. He did not have jurisdiction by the breach of section 16 (7) in that the appeal was filed outside the 14 days allowed by that section. Because it was filed on the 12^th April 2018.
   
8. Judicial review is about the process that is taken to arrive at a decision and when there is error in the process taken, and certiorari lies: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. And similarly mandamus lies to compel where duty upon a public official is not accorded and discharged: Vakinap v Kambanei [2004] PGNC 264; N3094 (29 November 2004). And Declaration lies consequently because the decision is not by a process of law. It is clearly in breach of the process of law by section 16 (7) of the NJSS Act. And because of that fact would follow in similar vein as Nining v Mann [2013] PGNC 153; N5338 (30 August 2013) that the decision at first instance would be brought into Court and confirmed as correct in law and binding forthwith on the third defendant. Because it is made ultra vires Eu v Rosso & Ors [2023] PGSC 63; SC2401 (2 June 2023) and Nining v Mann [2013] PGNC 153; N5338 (30 August 2013). Consequently, she remains dismissed forthwith. Cost will follow the event against the defendants.
   
9. The formal orders of the Court are:
   
   • (i) Judicial review is granted the Plaintiff.
     
   • (ii) That declaration lies in that the decision of the first defendant of the 28^th October 2019 is illegal, null and void ab initio.
     
   • (iii) That certiorari lies in that the decision of the first defendant of the 28^th October 2019 is removed into this Court and is quashed forthwith.
     
   • (iv) 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.
     
   • (v) Costs will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Nicholas Tame Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for First & Second Defendants