Tembil v Pokanis [2023] PGNC 403; N10555 (26 October 2023)

N10555

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 78 OF 2021(IECMS)

JOHN TIMOTHY TEMBIL
Plaintiff

V

STEVEN POKANIS COMMISSIONER OF PAPUA NEW GUINEA CORRECTIONAL SERVICE
First Defendant

AND
VINCENT KUNDI, DONALD APETI & BOB OMBA AS MEMBERS OF DISCIPLINARY BOARD
Second Defendant

AND
PAPUA NEW GUINEA CORRECTIONAL SERVICE
Third Defendant

Waigani: Miviri J
2023: 09^th & 26^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Substantive Notice Of Motion – Appointment Of Special Disciplinary Board – Whether Section 42 Correctional Services Act 1995 Breached – Appointment Of Members of Special Disciplinary Board From Outside Proper – Determination of Against Plaintiff Legal Effect of – Whether error of Law Section 13 CS Act –– Whether Section 42 CS Act breached – The Disciplinary Board As Opposed to Mukurumanda Disciplinary Board – Individual Disciplinary Boards For Each Corrective Institution – Disqualification of Member – Meaning Of Disqualification – Disqualification Board to Be Constituted in Session for Disqualification – Disqualification By the Fact of Being Charged – Notice By Commissioner To Member following – Motion Dismissed – Cost follow event.

Cases Cited:

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950
Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122
National Capital District Commission v Yama Security Services Ltd [2017] PGSC 7; SC1575

Counsel:

N. Kopunye & M. Worinu, for Plaintiff
V. Gonduon, for Defendants

DECISION

26^th October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s substantive notice of motion of the 23^rd February 2022 pursuant to Order 16 Rule 5 (1) seeking:
   
   • (i) A declaration that the appointment by the First Defendant of the 2^nd Defendant Vincent Kundi, Assistant Commissioner Bougainville Affairs, Chief Inspector Donald Apeti, Commanding Officer Bihiute Eastern Highlands Province and Chief Inspector Bob Omba, Office in Baragwagi Jiwaka Province to sit as the Special Disciplinary Board on the case against the Plaintiff of Mukurumanda Correctional Institution in Enga Province is void as it breaches section 42 of the Correctional Service Act 1995 on the grounds that: -
     
   • (a) There is no power to create a special Disciplinary Board:
   • (b) The persons appointed are not from Mukurumanda Correctional Institution.
     
   • (ii) An Order in the nature of certiorari that the appointment of the 2^nd defendant as the Special Disciplinary Board by the 1^st defendant be brought into this Court and be quashed.
     
   • (iii) An Order in the nature of Prohibition that:
     
   • (a) Prohibits the 2^nd defendants (special Disciplinary Board) from determining the plaintiff’s culpability and imposing any penalty prescribed under section 44 of the Correctional Services Act;
   • (b) Prohibits the 1^st defendant from implement the recommendations of the 2^nd defendants (Special Disciplinary Board) on the Plaintiff’s case.
     
   • (iv) A declaration that any decision of the 2^nd defendant (special Disciplinary Committee) appointed by the 1^st defendant on the plaintiff’s case is null and void ab initio.
     
   • (v) An Order in the nature of certiorari that:
     

(a) Any decision of the 2^nd defendant (special Disciplinary Committee) appointed by the 1^st defendant on the plaintiff’s case be brought into this Court and be quashed;
(b) Any decision of the 1^st defendant from implements the recommendations of the 2^nd defendants (Special Disciplinary Board) on the Plaintiff’s case be brought into this Court and be quashed.

• (vi) An Order that the Plaintiff to remain in his position as Commanding Officer of Mukurumanda Correctional Institution Enga Province with full benefits until a proper and full determination of charges against him and any loss of entitlements and benefits be returned to him.
  
• (vii) That the 1^st and 3^rd defendants to pay the plaintiffs costs of the proceedings on solicitor client basis.
  
• (viii) Time be abridged.
  
• (ix) Such further or other orders as this Honourable Court deems appropriate.
  

2. The plaintiff was granted leave for Judicial Review on the 19^th May 2023 after he had appealed to the Supreme Court SCM No 70 of 2021 after a refusal to grant leave for Judicial review by this Court. He is commander of Mukurumanda Correctional Institution in Enga Province. In the affidavit sworn of the 15^th June 2023 filed also on that day in support of this substantive motion he deposes that; “On 7^th April 2021 at Mukurumanda Jail Enga Province, I was officially suspended annexure “A” from duties by Assistant Commissioner Highlands Region, Mr. Simon Lakeng. I was suspended on alleged offences of using my position as Commanding Officer to dishonestly solicit financial advantages contravening Section 39 (j) of the Correctional Services Act 1995 (as amended)
   
3. I was charged with 4 counts of Serious Charges under Section 39 (g) of CS Act on 14^th April 2021.” These are serious charges, serious offences reading section 42 of the CS Act. Which section is in the following terms: - Serious offences.

“(1) A charge for a serious offence shall be heard by the Disciplinary Board.

(2) The Commissioner shall appoint for each correctional institution a Disciplinary Board which shall be comprised of the Commanding Officer of that correctional institution, the Deputy Commanding Officer of that correctional institution and another senior correctional officer or member of that correctional institution.

(3) A member of a Disciplinary Board may disqualify himself or herself and the Commissioner shall appoint another member of the same or senior rank to the disqualifying member.

(4) In hearing the offence, a Disciplinary Board shall–

(a) if not satisfied on the evidence, dismiss the matter; or
(b) if satisfied on the evidence, find the charge proven and apply one of the penalties prescribed under this Act.

(5) A Disciplinary Board shall not be bound by the rules of evidence in the conduct of a hearing under this section, but shall conduct the hearing in accordance with the rules of natural justice and the procedures prescribed.”

4. To give effect to this section the plaintiff deposes in his affidavit, “In the deliberation of my disciplinary Charges, a special disciplinary Board was appointed by the Commissioner on 16^th July 2020 using his vested powers under section 13 of the CS Act, 1995. Under section 42 (2) of the CS Act, 1995(As amended), the Commissioner has a responsibility to appoint a disciplinary Board and that appointment is mandatory. Section 42 of CS Act makes no provision for appointment of Special Disciplinary Board rather a Disciplinary Board comprising of the Commanding officer of that Correctional Institution and any other two members of that Correctional Institution.
   
5. In my case since I was being charged and the sitting concerned me, I had to disqualify myself for the Commissioner to appoint another person in my place to sit as a member of the Disciplinary Board.
   
6. I was never given that opportunity to disqualify myself for the Commissioner to appoint another member of the same or senior rank in my place to sit as the Disciplinary Board.
   
7. The formation of the “Special” Disciplinary Board as appointed by the Commissioner to deliberate on my allegations are as follows:
   • (a) Assistant Commissioner Vincent Kundi Chairman- Bougainville Affairs (NCD)
   • (b) Chief Inspector Donald Apeti Member Baisu Jail (WHP)
   • (c) Chief Inspector Bob Omba Member Buieibi Jail (SHP)”
     
8. First and foremost, out of subsection 1, A charge for a serious offence shall be heard by the Disciplinary Board. It does not say a serious offence committed in Mukurumanda Jail will be heard by the Mukurumanda disciplinary Board. Which is what the plaintiff is saying, that because a Disciplinary Board is established here comprising the Commander the Plaintiff, his deputy, and another member within Mukurumanda, they have the exclusive jurisdiction as Disciplinary Board within to hear the charges of the Plaintiff. The offences arise from within Mukurumanda, and it is the board within that has jurisdiction to hear the matter. So long as it is a serious offence it shall be heard by the Disciplinary Board. Which is established not only in Mukurumanda alone but also the other established gazetted jails. The law section 42 does not confine qualifying with Mukurumanda Disciplinary Board alone and exclusive in the hearing of the serious offence. A serious offence is a serious offence whether committed in Mukurumanda or Buieibi, or Lakiemata, or any other Jail for the same, it is still a serious offence. It shall be heard by the Disciplinary Board. Which is established for each Jail constituted as set out under subsection 2.
   
9. No doubt the Legislature did not intend a clog in the administration and ambit of that law. It no doubt foresaw that instances as the present would eventuate and therefore it was proper that a disciplinary board other than that for which the Applicant was alleged continue to exercise and discharge that function. Which is why section 13 of that Act in the hands of the Commissioner. That for which is discretion to do to pick one such board existing and to assign to do here. It follows that for the disciplinary Board to hear the serious offence of the plaintiff it cannot be by the Disciplinary Board set up in Mukurumanda, because by virtue of the fact that the Chairman, Plaintiff, Commanding Officer of Mukurumanda is charged with the four serious offences, that Disciplinary Board does not have the Jurisdiction because of that fact to convene to hear the matter. If it did it is for the Plaintiff to place on record that he is disqualified as he is now the subject of the serious offences to be heard. Subsection 3 address disqualification without giving the terms as to how a member disqualifies. It states that, “A member of a Disciplinary Board may disqualify himself or herself and the Commissioner shall appoint another member of the same or senior rank to the disqualifying member.”
   
10. It does not state as to whether the Disciplinary Board is convened in session for the member to disqualify, or that a formal application is made in that session as in Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950 (11 May 2020). Application was made by the lawyer for the disqualification of the Judge from presiding and hearing the matter. In my view this would be the case where, what is the basis of the disqualification is not known by the Judge. So, the basis of the application is to draw the Judge to that fact, opportunity also given to the other party before the Court to respond on that aspect drawing upon the Judge to make that determination formally. And this view has been followed in National Capital District Commission v Yama Security Services Ltd [2017] PGSC 7; SC1575 (10 March 2017). The Court constituted considered the issue before going to the substantive matter.
    
11. This is not the situation here of the plaintiff. He has formal charges that have been served recorded against his name. No doubt that versed of the Commissioner who is by section 13 of the CS Act in his superintendence of the Correctional Services well aware of the disciplinary matters against the Plaintiff Commander of the Jail Mukurumanda. In my view that is sufficient notice and upon which the Commissioner acted as he did to appoint a disciplinary board as he did here. It is not necessary for a formal disqualification before the constituted Disciplinary Board in Mukurumanda. It is sufficient in my view that plaintiff has been charged notice already to the Commissioner who has reacted as here. But accord with section 42 (2) of the CS Act in the appointment he made of the Special Disciplinary Board is not to the letter of that law. The consequence is that they do not draw life in law. And they do not have lawful basis to sit and hear the disciplinary matters against the plaintiff. Here there is no evidence of them sitting and hearing the matter. It means that decision of the Commissioner in their appointment is an error of law on the face of record. It will as a result be brought into Court and quashed. Effectively meaning that they do not have the legal capacity to hear the serious offences of the plaintiff. But that the Commissioner can task that upon a Board properly constituted within the terms of subsection 2 from the other Correctional Institutions to come and hear.
    
12. Because it remains that the Composition is incomplete as the initial is the Commanding Officer of the Correctional Institution, in this case Mukurumanda. That is specific language and therefore it cannot be constituted without the commanding officer. The alternative reading of the language of subsection 1 is for a disciplinary Board from another Jail. Because it is composed comprised as subsection 2 instructs. So, it could be the disciplinary Board from Bomana, or Lakiemata, or Buimo or any other at the discretion of the Commissioner to elect and assign to hear the four serious offences against the plaintiff. This in my view will give effect to compliance of section 42 (2) (3) of the CS Act. And would be hand in hand with the powers of the Commissioner under Section 13 under the CS Act. The Disciplinary Board Mukurumanda cannot be constituted composed because the chairman is an accused in the matter. It is proper that a Disciplinary Board set up in another jail come to deal with the matter.
    
13. There is no provision under the CS Act warranting giving the jurisdiction to set up the Special Disciplinary Board in this manner. In the case here there are four serious offence that shall be heard by the Disciplinary Board. It says shall be heard by the Disciplinary Board. And reading subsection 2 appoint for each correctional institution a Disciplinary Board would mean each individual Jail established throughout the Country would have its own disciplinary Board appointed. But it is the Disciplinary Board that Shall hear a charge of a serious offence. In this regard there are also other disciplinary Board that are established following the dictate of subsection 2.
    
14. These appointments made by the Commissioner in the Special Disciplinary Board show that each of the members comprising it are not from Mukurumanda Corrective Institution. All cannot constitute the disciplinary board for Mukurumanda. Because not one of that is the Commanding Officer of Mukurumanda Corrective Institution. Or the Deputy Commanding officer or a member within. It means section 42 is not heeded by the Commissioner in the appointment of the Disciplinary Board to hear the charges of the Plaintiff. They do not have the power to hear the charges against the plaintiff. And any attempt to hear the charges of the plaintiff will not follow and sustain in law. They are not properly constituted comprised satisfying the requirements of section 42 in the composition of the Disciplinary Board for Mukurumanda. The Disciplinary Board as it is constituted must be disbanded and reconstituted comprising all from Mukurumanda not without to give effect to section 42 of the CS Act set out above. There has and must be a commanding officer of that Jail to make that Disciplinary Board complete. Otherwise, it can be dealt with heard in the manner set out above.
    
15. There is therefore cause demonstrated discharging the balance in his favour by the plaintiff within Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 that error has been demonstrated to review that decision as pleaded set out above. To bring it before this Court to have that decision in the terms set out above quashed forthwith. It means that the Special Disciplinary Board does not exist in law. It will be reconstituted within the terms of Section 42 (2) derived from the other disciplinary Boards in the other Correctional Institutions, for example from Buimo, or Bomana, or Lakiemata, of Giligili as discretion by the Commissioner, but not on the terms he has commissioned here.
    
16. The orders are granted in the terms of the Notice of motion set out above. It need not be repeated in view of the fact that certiorari lies because there is error in the process taken: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192.
    
17. The formal orders of the Court are:
    
    • (i) The Plaintiffs Notice of motion set out above is granted as pleaded.
      
    • (ii) Costs will follow the event forthwith.
      

Orders Accordingly.

__________________________________________________________________

Kopunye Lawyers: Lawyer for the Plaintiff/Applicant

Correctional Services Institution: Lawyer for First Defendants