Jacob v Manuhu, Chief Magistrate [2005] PGSC 21; SC802 (2 August 2005)

SC802

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE IN WAIGANI]

SCM NO. 14 OF 2001

Between:

FRANCIS JACOB
(Appellant)

And:

GEORGE MANUHU the CHIEF MAGISTRATE
(First Respondent)

And:

The HONOURABLE PURI RUING in his
Capacity as the Chairman of the
JUDICIAL LEGAL SERVICES
COMMISSION and MEMBERS of the
COMMISSION
(Second Respondent)

And:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
(Third Respondent)

WAIGANI : SAKORA J, SEVUA & SAWONG JJ.

2003. : 30^TH SEPTEMBER
2005. : 02^ND AUGUST
      

CASES CITED:
Toll v Kibi Kara & Ors [1990] PNGLR 71,
Air Nuigini v Doiwa (Unreported Judgment No. 1972),
Gabir v Koronai & Ors [1988-89] PNGLR 406,
David Coyle & Ors v Loani Henao & Ors (Unreported Judgment of the Supreme Court No. SC655),
Evans v Batlem [1937] AC 473.

Counsel:
D. STEVENS, for the Appellant
F. KUVI, for the Respondents

BY THE COURT: This is an appeal against the decision of the National Court made on 9^th November, 2001 dismissing the Appellant’s application for judicial review with costs.

The appeal was lodged by way of a Notice of Motion pursuant to Order 10 of the Supreme Court Rules and Orders 16 and 17 National Court Rules.

Background

In order to understand the grounds of appeal, it is necessary to set out in a chronological sequence brief but pertinent facts which are not in dispute. At the relevant and material time the appellant was a Senior Magistrate based at the Port Moresby District Court in the National Capital District.

On or about 6^th July 1999, the first respondent received a letter of complaint from the then Acting Deputy Chief Magistrate concerning the conduct of the appellant. The allegations related to the appellant soliciting and accepting money in the course of the performance of his duties. The Chief Magistrate considered the allegations to be serious and decided to commence the disciplinary proceedings against the appellant.

On 16^th July, 1999 the first respondent formulated the charges and the suspension notices and had them served on the appellant on the same day. On 20^th July, 1999 the appellant responded to the charge and denied the allegations. In his response the appellant had protested that he had not been furnished with the copy of the actual letter of complaint. On 4^th August, 1999 the first respondent interviewed the complainant, one, Margret Watakau. On 23^rd August 1999, the first respondent furnished to the appellant the original letter of complaint. On 2^nd September 1999, the appellant wrote back to the Chief Magistrate acknowledging receipt of the complaint and enquiring as to whether he should reply to it. On 7^th September 1999, a memorandum was written to him to reply to the complaint made against him. He obviously received that because on 17^th September 1999, he replied to it. In that reply he admitted that he had accepted the money from the complainant. After that he says he did not receive any other correspondence until he was served with the Notice of Dismissal. On 24^th September, 1999 the first respondent, wrote to the appellant advising him of his recommendations to have him dismissed from the Magisterial Service. In that minute the first respondent advised the appellant to lodge an appeal against his recommendations within 14 days. After the expiry of the appeal period of 14 days, the first respondent prepared the matter for deliberations by the Judicial and Legal Services Commission (the Commission). On 8^th October, 1999 the Commission considered the recommendations and decided to dismiss appellant from the Magisterial Service. Mr Jacob was subsequently served with a Notice of Dismissal.

After that decision of the Commission, the appellant applied for judicial review of the JLSC decision to the National Court on 11^th September, 2001. Decision on 9^th November, 2001 dismissed the application.

Grounds of Appeal

There are essentially five grounds of appeal relied upon by the appellant. These grounds may be summarized as follows:

1. The appellant alleges that the learned trial judge erred in his findings of fact that the appellant was served with a copy of the recommendation for the appellant’s dismissal.
   
2. The learned trial judge erred in holding that the appellant had failed to invoke the appeal procedures.
   
3. That the learned trial judge had erred in holding that the appellant had not given evidence in his earlier affidavit that he was not served with a copy of the first respondent’s decision and that he had failed to give his evidence as to why the first respondent could have deliberately withheld notice of his decision or recommendation of evidence of bias or personal vendetta.
   
4. That the learned trial judge erred in law because the first respondent had the onus of proving that he had in fact served the notice of his recommendations for dismissal upon the appellant that the learned trial judge shifted the burden to the appellant at the trial and in doing so the learned trial judge had erred in law.
   
5. That the learned trial judge erred in law in refusing to hear the appellant’s counsel on the issues relating to breaches of natural justice.
   

In their written submissions and at the hearing of the appeal, both counsel and in particular, counsel for the appellant has conveniently grouped the grounds of appeal into three categories.

Grounds 1 and 2 are to be dealt together. They relate to evidence of proof of service of the recommendations to dismiss. Here the appellant alleges that his Honour, the trial judge, erred in his finding of fact that the appellant was served a copy of the recommendations for the appellant’s dismissal. The appellant submits that there was no evidence that the appellant was served with the Notice of Recommendation to Dismiss. He submits that evidence from Mr Manuhu’s affidavit filed on 28^th June, 2001 merely states that, Mr Manuhu wrote to Mr Jacob advising him of the recommendation. It fell short of saying that Mr Jacob was in fact served with the Recommendation to Dismiss. On the other hand, the evidence from the appellant, it is submitted, showed that he was not served with the Recommendation until after his dismissal and after the appeal period provided for under the Magisterial Services Determination had lapsed.

It was submitted that this was a grave error, because it had influenced his Honour’s judgment that the appellant was served with the Recommendation to Dismiss and that there was nothing left for him to complain about.

These two grounds raise issues of findings of fact made by the learned trial judge.

It is submitted by the appellant that the National Court had correctly acknowledged throughout its decision that service of the Chief Magistrate’s decision to recommend dismissal of the appellant was in issue. However, it was submitted the court erred in making the findings that the appellant had in fact been served with recommendation and as a result the appellant was denied the right to appeal. It was further contended that the learned trial judge had erred in saying that the onus of proof had shifted to the appellant to prove that he had not been served when in fact the onus was on the first respondent to prove he had in fact served that recommendation.

It has been submitted that, the then Chief Magistrate was under a mandatory duty to inform the appellant of his decision under s.53 (6) of the Act. It was submitted that because the law imposes this mandatory duty on him, the Chief Magistrate bore the onus of proving that he had in fact served the appellant and that it was not for the magistrate concerned to establish anything. It was submitted that there had been evidence in Mr Manuhu’s affidavit of service of the Notice of Charge and Notice of Suspension which had proof of service endorsed on those documents by the person who served those documents but the minute in question did not have any such proof of service endorsed on it. Consequently, it was submitted that the trial judge had erred in finding that the said notice had in fact been served.

On the other hand counsel for the respondents submit that looking at the overall evidence, the evidence from the beginning to the end, showed that the first respondent had in fact caused the Notice of Charge, Notice of Suspension and other documents to be served on the appellant and that there was no cause to believe that the Notice of Recommendation had not been served on the appellant.

The relevant law relating to disciplinary proceedings involving magistrates is set out in the Determination of Terms and Conditions of service (DTCS) adopted pursuant to s.10 (1) of the Magisterial Services Act 1975 (as amended) (the Act).

The relevant provisions of the DTCS are set out in Part 3 Discipline. This reads:

“Division 1 - Definition of Disciplinary Offences.

51. - DISCIPLINARY OFFENCES

A Magistrate who –

(a) except in the course of official duty, divulges, directly or indirectly, any information concerning public business or any mater of which he has official knowledge; or

(b) commits a breach of the provisions of this Determination; or

(c) wilfully disobeys or disregards a lawful order made or given by any person having authority to make or give it; or

(d) is negligent or careless in the discharge of his duties; or

(e) is inefficient or incompetent from causes within his control; and

(f) uses intoxicating liquors or drugs to excess; or

(g) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration); or

(h) is guilty of any disgraceful or improper conduct either in his official capacity or otherwise; or

(i) having made a Judicial Declaration does or says anything in violation of that Declaration,

is guilty of a disciplinary offence and is liable to be dealt with and punished under this Part.

Division 2 - Minor Disciplinary Offences

52. - DEALING WITH MINOR DISCIPLINARY OFFENCES

(1) If the Chief Magistrate, or a Magistrate or an officer authorized by the Chief Magistrate to deal with minor offences, has reason to believe that a Magistrate has committed a disciplinary offence which, in his opinion would be properly dealt with under this section, he may call on the Magistrate for an explanation as to the alleged offence, and if, on consideration of the explanation, he is of the opinion that the offence has been committed, he may caution or reprimand the offending Magistrate or fine him a sum of note exceeding K20.00.

(2) A caution, reprimand or fine by a Magistrate or officer other than the Chief Magistrate shall be immediately reported to the Chief Magistrate and, where the offence has been punished by a fine, the Magistrate affected may appeal to the Commission within 48 hours after the notification to him of the punishment.

(3) On any such appeal the Commission may confirm annul or vary the punishment, and its decision is final.

Division 3 – Serious Disciplinary Offences

53. - DEALING WITH SERIOUS DISCIPLINARY OFFENCES.

(4) Where there is reason to believe that a Magistrate has committed a disciplinary offence other than an offence which may be dealt with under Division 2, this Division applies.

(5) The Magistrate may be charged by the Chief Magistrate or a Magistrate or an officer authorized by the Chief Magistrate to lay charges under this Division, and may, if it is considered that the charge Magistrate should not continue in the performance of h is duty, be suspended by the Chief Magistrate or, in the case of emergency, by a Magistrate or an officer authorized by the Chief Magistrate to lay charges under this Division.

(6) Suspension may be effected before, at the time of or after the laying of the charge, and may be removed at any time by the Chief Magistrate pending determination of the charge, and where the charge has not been sustained shall be lifted immediately on a finding to that effect.

(7) On a charge being laid against a Magistrate, he shall be furnished with a copy of the charge and shall be directed to reply in writing stating whether he admits or denies the truth of the charges, and to give any explanation he desires in regard thereto, and if a reply is not given by the Magistrate within seven days after his receipt of the charge the Magistrate may be deemed to have admitted the truth of the charge.

(8) If the Chief Magistrate, after consideration of reports relating to the offence and charge, the reply and explanation (if any) of the Magistrate charged and any further report he considers necessary, is of the opinion that the charge has been sustained, he may –

• (a) fine the Magistrate a sum not exceeding K100.00; or
  
• (b) reduce the Magistrate’s salary range within his classification; or
  
• (c) demote the Magistrate to a grading having a lower classification, and to a salary within that classification; or
  
• (d) transfer the Magistrate to another posting either in addition to or instead of imposing a punishment specified in Paragraph (a), (b) or (c); or
  
• (e) recommend to t he Commission that the Magistrate be dismissed from the Service.
  

(9) The Chief Magistrate shall notify a Magistrate of a punishment imposed or recommendation made under Subsection (5), and where the punishment is other than the imposition of a fine not exceeding K10.00 the Magistrate may, within the prescribed time, appeal to a Tribunal constituted under this Part.”

It is not necessary to consider and interpret all the provisions. We consider that for the present purposes, the only relevant provision to consider is s.53 (6).

Section 53 (6) of the Act is in mandatory terms. It places a mandatory obligation on the Chief Magistrate to notify a magistrate of a punishment imposed or recommendation made under Subsection 5 of the provision.

There is no issue between the parties on the interpretation and application of that provision. The only issue is the application of the law to the facts.

The learned trial judge was placed in a very difficult position at the trial because both parties had chosen to rely on their affidavit evidence. None of the deponents was cross examined. A closer reading of the transcript of the proceedings show that his Honour was mindful of the difficulty that was posed on this crucial issue. On the one hand, the then Chief Magistrate swore an affidavit showing that he had informed the appellant by a memorandum of the 23^rd of September, 1999 of his decision to recommend the appellant for dismissal. On the other hand, the appellant in his affidavit said that he had not been served with that particular document. His Honour raised consistently throughout the hearing as to how he was to resolve this difficulty in view of the fact that none of the deponents had been called and cross examined. Both counsel made submissions as to how he should approach this point in resolving it. He considered the submissions put forward by both parties and preferred the evidence of the first respondent to that of the appellant. His Honour was aware of the difficulties he was in. He addressed this difficulty at p.3 of his judgment where he said:

“Counsel for both parties have not suggested how I should find in terms of which of the claims should I accept. This was very unhelpful because of the fact that neither of the parties cross examined the others.”

The learned trial judge then made some remarks about s.53 of the Act and said:

“It follows therefore that, if indeed Mr Jacob was not given notice of the Chief Magistrate’s decision, he should have immediately asked for a copy of the decision and ask for an extension or a delay of the running of the appeal period until he received a copy of the decision. There is no evidence of such steps being taken. Indeed, the onus of proof was with Mr Jacob. He had the obligation to establish his claim against them. To the extent that Mr Jacob allowed a claim against his case to go unanswered, he accepted that claim to be true and/or correct. As noted, Mr Jacob has neither produced any evidence nor is he claiming that the Chief Magistrate had a personal vendetta or bias against him or anything like that, to cause the Chief Magistrate to withhold notifying Mr Jacob of the decision to recommend his dismissal. For these reasons, I do not accept Mr Jacob’s claim that he was not served with a copy of the Chief Magistrate’s decision any earlier than the 26^th of October, 1999.

Based on the above finding, I do not accept Mr Jacob’s argument that, because he was not served with a copy of the Chief Magistrate’s decision, he was denied the right to appeal against that decision under s.53 (b) and s.54 (d) of the Act. Instead, I find that he was served with the Chief Magistrate’s decision. I also find that, the failure to lodge his appeal in accordance with the appeal process prescribed under the Act was Mr Jacob’s own doing. The same goes for his other arguments in terms of being denied the opportunity to be heard on his appeal by an independent tribunal.”

His Honour continued and said at p.4:

“It is settled law that all or any available administrative remedy must first be exhausted before applying for judicial review. In this case, Mr Jacob had a right of appeal under ss.53 and 54 of the Act. He failed to exercise that right. I therefore find there is no basis for these and other arguments to stand.”

We are in no better position. We are of the opinion that the learned trial judge was entitled to come to the conclusion and findings on this aspect in the manner and for the reasons that he gave. If anything it was “the fault” of trial counsel for not assisting the court when counsel knew or ought to have known that this was a crucial issue that needed to be resolved by calling oral evidence upon which the deponents could have been cross examined. His Honour was left with the state of the evidence which were not tested by either side and he was, in our opinion, perfectly entitled to accept the evidence of the first respondent as opposed to the evidence of the appellant and for the reasons that he gave. In the circumstances we would dismiss these grounds.

Further and in the alternative the arguments raised by the parties in grounds 1 and 2 raise questions of fact. An appeal from orders made by the National Court under Orders 16 and 17 of the National Court Rules are to be instituted by a Notice of Motion pursuant to Order 10 of the Supreme Court Rules. Order 10 Rule 3 provides that the Notice of Motion shall (a) show where appropriate the particulars set out in a Notice of Appeal under O.7 r 8. Order 7 Rule 8 prescribes what the Notice of Appeal should contain. The Notice of Appeal must state that an appeal lies without leave or that, leave has been granted and or annex the appropriate order to the notice of appeal and state whether the whole or part only and what part of the judgment is appealed from etc.

Section 14 of the Supreme Court Act relates to Civil Appeals to the Supreme Court. Section 14 (1)(c) says that an appeal on a question of fact must be with leave.

While this point was not argued, nevertheless, in our opinion the competency of an appeal is always open to the Court at any stage of the proceedings before the Supreme Court.

In the present case the Notice of Motion, in so far as it relates to grounds 1 and 2 which raise questions of fact, do not plead that leave has been obtained. Consequently, grounds 1 and 2 are incompetent and we would dismiss them for that reason.

As for grounds 3 and 4 they stem from the incompetent grounds namely, grounds 1 and 2 and as these two grounds have been dismissed as being incompetent, they cannot stand. They too are therefore dismissed.

Grounds 3 and 4 – Irrelevant Considerations. They are also dealt with together for convenience. In these grounds it is asserted that the learned trial judge erred in taking into account irrelevant considerations.

These grounds alleged that the trial judge erred in taking into account irrelevant considerations in arriving at the finding that the appellant was actually served a Notice of Dismissal. He stated that because the appellant did not state in his earlier affidavit that he was not served and that because the appellant had not given any evidence showing any reasons why the notice of the Recommendation to be Dismissed could have been withheld, then he was indeed served with a Notice of Recommendation.

Counsel for the appellant submitted that, these are irrelevant considerations which do not establish that the appellant was in fact served with a Notice of Recommendation and his Honour had therefore erred in taking them into account to determine his finding that the appellant was served with the Notice of Recommendation. It was submitted that the Chief Magistrate was under duty to ensure that the appellant was in fact served with the Notice of Recommendation and that the Chief Magistrate did not adduce any evidence that the appellant was in fact served. Mr Stevens submits that once it was raised in evidence, the onus of proof was on the Chief Magistrate to show that the appellant was in fact served with the Notice of Recommendation. As he did not do so, the learned trial judge erred in his finding of fact that the appellant was in fact served.

These grounds stem from grounds 1 and 2. As these grounds have been dismissed we would also dismiss these grounds.

Ground 5

This ground raises the point that the trial judge had erred in refusing to allow the appellant’s counsel to address the Court on other issues apart from the issue of service thereby denying the appellant’s right to be heard on his case. It has been submitted that the trial judge had erred in refusing to hear counsel on other important submissions apart from the issue of service. It was contended that the appellant was not allowed to advance important and relevant issues such as, breaches of the principles of natural justice arising from the failure to give the appellant the opportunity to be heard on penalty and the unreasonableness of the decision. The appellant submits that he was not allowed to advance an argument that he had the right to be heard on the question of penalty and he was denied such right. It is contended that because the penalty provision under s.53 of the Act, determination of the terms and conditions of service are not automatic and as the authority has the discretion to fix appropriate penalty, the appellant ought to have been given the opportunity to be heard on the question of penalty. These arguments are based on the principles which are set out in Toll v Kibi Kara & Others [1990] PNGLR 71.

The appellant further contends that he was not allowed to advance his argument, that the decision of the Chief Magistrate was unreasonable in that the learned Chief Magistrate took into account adverse material that was not put to the appellant for his comments. It is contended that the decision was unreasonable having been influenced by irrelevant and extraneous material as evidence from the affidavit of Mr Manuhu. The appellant relies on Air Nuigini v Doiwa (Unreported Judgment No. 1972). It has been further contended that all the materials that were considered by the learned Chief Magistrate were never put to the appellant and were irrelevant to the charge at hand. They were separate matters that did not form part of the charge that was put to and answered by the appellant. It was therefore superficial and tenable for the Chief Magistrate to say that those materials did not affect his mind on the question of guilt but only on penalty alone. It was submitted that even if they were considered on penalty alone, such material ought to have been drawn to the attention of the appellant for his response. It has been contended that the principles of natural justice have been held to apply to disciplinary procedures in the public service and professional bodies such as the Law Society. The appellant relies on Gabir v Koronai & Others [1988-89] PNGLR 406 and Toll v Kibi Kara (supra).

Counsel for the appellant submits that those submissions were not put by the appellant in the Court below because the trial judge did not permit his counsel to address those issues. Mr Davis contends that they ought to have been permitted to put those submissions. As his counsel were not permitted to address those issues, it has been submitted that the learned trial judge erred in law in doing so.

The respondents submit that the trial judge could not venture into those areas because of his finding that the appellant was indeed served with the Notice of Recommendation for Dismissal. Had he ruled otherwise, then the arguments may have been allowed to be advanced.

Mr Kuvi submitted that it is settled law that an Appeal Court should not, as a matter of law disturb or overturn a trial judge’s decision easily unless it can be shown that the decision he arrived at was so unreasonable or so wrong that no reasonable tribunal would have arrived at it. He relied on David Coyle & Others v Loani Henao & Others (Unreported Judgment of the Supreme Court No. SC655, Evans v Batlem [1937] AC 473.

Mr Kuvi submitted that this Court should not upset or overturn the decision of the trial judge in this case because his decision was not so inordinately wrong that no other tribunal could have arrived at it. On the contrary, the decision was just given all the materials presented before him at the time.

Ground 5 clearly follows on from the other grounds. It stems from the findings of facts and determinations of those facts or law made by the trial judge and the other grounds which we have dismissed. It does not stand alone.

Because of the way we have answered the other grounds, we consider that ground 5 cannot be considered alone nor can it survive alone.

In that respect, we accept the submissions that counsel for the respondents has put forward and in our view, the decision made by the trial judge was open to him on the evidence.

Consequently, we dismiss this ground of the appeal as well.

For the reasons that we have given, we would dismiss the appeal with costs.
_____________________________________________________________________
LAWYERS FOR THE APPELLANT : STEVEN LAWYERS
LAWYERS FOR THE RESPONDENTS : SOLICITOR GENERAL