Ombalo v Inguba [2004] PNGLR 28 (20 October 2004)

NATIONAL COURT OF JUSTICE

GREGORY OMBALO

V

SAM INGUBA – THE COMMISSIONER OF POLICE; AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

WAIGANI: DAVANI J

13 & 20 October 2004

JUDICIAL REVIEW – Certiorari – Termination under provision of repealed act – Termination not proper.

JUDICIAL REVIEW – Declaration – Plaintiff not given the opportunity to respond to the charge – Breach of principles of natural justice.

PRACTICE AND PROCEDURE – Plaintiff charged under provision of repealed act – Provision repealed before plaintiff was charged – Act is non-existent – Savings provision does not apply – S.43 (c) of Police Force Act Chapter 65 ('Repealed Act') – S.157(2) of Police Act No. 37 of 1998.

Facts

The plaintiff was terminated from the Police Force after he was convicted for permitting an escape, under section 140 of the Criminal Code and it was also ordered that the plaintiff be demoted from the rank of Senior Constable to First Constable. Further, he was charged with a Serious Disciplinary Offence under section 43(c) of the Police Force Act (Chapter 65) (now repealed). The plaintiff was not given an opportunity to reply to the Serious Disciplinary Offence. Consequently, the plaintiff was terminated from the Police Force. The plaintiff commenced these proceedings and obtained an order for leave to apply for judicial review.

Held

1. The defendants had erred in charging the plaintiff under s. 43 (c) of the Police Force Act chapter 65, after it was repealed.

2. The defendants did not accord the plaintiff a fair right to a fair hearing and a right to be heard.

3. The punishment should not have been imposed in the first place because the plaintiff did not or was not given an opportunity to respond to the charge.

Cases cited

Kay v Goodwin [1830] EngR 605; (1830) 6 Bing 576.
Surtees v Ellinson [1829] EngR 594; (1829) 9 B&C 750.

Counsel

D. Dotaona, for the plaintiff.
S. Bonner and P. Ifina, for the defendant.

20 October 2004

Davani j. On 28 April 2003, the plaintiff filed Originating Summons seeking amongst others, leave for judicial review of the first defendant's decision of 13 November 2001, to terminate his employment with the Royal Papua New Guinea Constabulary ('Police Force'). These are the formal orders sought by the plaintiff in the Originating Summons;

1. Leave to apply for judicial review of the first defendant's decision to terminate the plaintiff's employment with the Police Force on or about 13 November 2001;

2. An order that the first defendant's decision to terminate the plaintiff from the Police Force on or about 13 November 2001, be reviewed;

3. A Declaration that the Police Commissioner, Joseph Kupo's decision to terminate the plaintiff's employment from the Police Force on 13 November 2001, is, under the prevailing circumstances then, in breach of the principles of natural justice and is null and void and of no effect;

4. An order in the nature of Certiorari to bring up the Police Commissioner's decision of 13 November 2001, to terminate the plaintiff's employment with the Police Force and to restore the plaintiff to the rank of Senior Constable;

5. An order compelling the Police Commissioner to reinstate the plaintiff to the rank of First Constable with the Police Force and to also restore to the plaintiff his full entitlements since he was terminated;

6. Damages;

7. Costs of these proceedings;

8. Such further and other relief as the Honourable Court deems fit;

9. That time for entry of the orders be abridged to the time of settlement by the Registrar which shall take place forthwith;

On 4 June 2003, the National Court granted the plaintiff leave to review the first defendants decision of 13 November 2001.

The plaintiff relies on his affidavit sworn on 17 June, 2004. The defendants rely on the affidavit of Chief Sergeant Alphonse Maipe sworn on 20 November, 2003.

Background

By a Statement of Agreed and Disputed Facts and Legal and Factual Issues filed on 27 November 2003, the parties agreed to the following facts:

1. The plaintiff joined the Police Force on 20 January, 1978 and served until his removal from the Police Force payroll on 25 May, 2002. His regimental number in the Police Force is 7461;

2. The plaintiff was terminated from the Police Force on 13 November, 2001;

3. The plaintiff was on duty at the Kundiawa Police Station on 4 November, 1998 from 4.00pm to 12.00pm;

4. On 5 November, 1998, a rape suspect namely Hosea Kino (an ex-policeman) escaped from the custody of Senior Constable Steven Numapo and Senior Constable Paluse whilst on their 12.00pm to 8.00am shift at the Kundiawa Police Station;

5. The plaintiff was not on duty at the time the rape suspect escaped from police custody at the Kundiawa Police Station;

6. The plaintiff was arrested for allegedly permitting a rape suspect to escape from custody;

7. On 15 March, 1999, the Kundiawa District Court convicted the plaintiff for permitting an escape, under section 140 of the Criminal Code and fined him K200.00. The Kundiawa District Court also ordered that the plaintiff be demoted from the rank of Senior Constable to First Constable;

8. On 16 March, 1999, Chief Superintendent S.N. Mapi charged the plaintiff with a Serious Disciplinary Offence under section 43(c) of the Police Force Act (Chapter 65) (now repealed);

9. The plaintiff was not given an opportunity to reply to the Serious Disciplinary Offence of 16 March, 1999;

10. On or about 13 November, 2001, the plaintiff was terminated from the Police Force, a decision made by the former Commissioner Joseph Kupo;

11. The plaintiff remained on the Police Force payroll and continued to serve the Police Force until 25 May, 2002 when he was removed from the said payroll;

12. The plaintiff traveled to Port Moresby to enquire about the reasons for his removal from the payroll and was advised that he had been dismissed from the Police Force;

13. After being told of his dismissal from the Police Force, the plaintiff sought legal assistance from four private law firms and the Public Solicitor's office, however, the lawyers that he consulted did not take up the case;

14. In November 2002, the plaintiff sought assistance from the Public Services Commission and was advised that the Commission did not have jurisdiction to deal with Police Force appeals;

15. The plaintiff sent a letter dated 20 September, 2002 to the Commissioner of Police seeking reinstatement into the Police Force but the Commissioner of Police did not respond to that letter;

16. The plaintiff also sought assistance from a Member of Parliament the Honourable Robert Kopaol who made representations to the Commissioner of Police for the plaintiff's reinstatement to the Police Force;

17. By letter dated 26 September, 2002, the Commissioner of Police advised Honourable Kopaol that it was the policy of the Police Force not to reinstate dismissed members unless there was a court order to do so. The letter also advised that only after a successful Judicial Review could the plaintiff then be reinstated to the Police Force;

18. On 24 April, 2003, the plaintiff's lawyers wrote to the Solicitor General giving notice to the State of the plaintiff's intention to make a claim against the State;

19. On 28 April, 2003, the plaintiff commenced these proceedings and an order was made on 5 June, 2003 giving leave to the plaintiff to apply for judicial review.

Issues before the court

The plaintiff was terminated for contravening s. 43 (c) of the Police Force Act chapter 65. ('repealed act'). It is not disputed that this act is now repealed and replaced by the Police Act No. 37 of 1998 which was certified on 17 December 1998. s.43(c) of the repealed act reads;

"43. Disciplinary offences

A member of the Regular Constabulary Branch who –

...

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

...

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

The issues before the court that is common to all parties and that I have seen in submissions given to me by both counsel are the following;

1. Whether the first defendant erred in law when it terminated the plaintiff under s.43 (c) of the repealed act.

2. Whether the first defendant breached principles of natural justice in his determination of the charge against the plaintiff;

3. Whether the decision to terminate the plaintiff was unreasonable and excessive in the circumstances.

First issue - Whether the first defendant erred in law when it terminated the plaintiff under s. 43 (c) of the repealed act;

Plaintiff's counsel referred me to several authorities on this point which I will refer to because it answers the issue raised. The authorities he referred me to are;

i. Halsbury's Laws of England, (4th edn.) Vol. 44: Statutes at para 971:

"The general principle is that, except as to transactions past and closed, an enactment which is repealed is to be treated as if it had never existed. What has been done and perfected cannot be disturbed but the enactment cannot be overlooked to for assistance for any further purpose. However the operation of the principle is subject in every case to any savings which may be made expressly or by implication, by the repealing enactment, and in most cases it is subject also to the general statutory provisions now in force as to the effects of the repeal."

ii. Kay v Goodwin [1830] EngR 605; (1830) 6 Bing 576 at 582, Tindal CJ said:

"I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law."

iii. In Surtees v Ellinson [1829] EngR 594; (1829) 9 B&C 750 at 752, Lord Tenteden said:

"It has long been established that when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed."

The plaintiff's lawyer submits that the plaintiff was charged on 16 March 1999, a month after the commencement of the Police Force Act No. 37 of 1998. Clause 11 of the Statement of Agreed and Disputed Facts filed on 28 November 2003 states that the plaintiff was not given an opportunity to reply to the serious disciplinary offence dated 16 March 1999 and that he was subsequently terminated from the Police Force on or about 18 November 2001. This decision was made by the then Commissioner of Police Mr Joseph Kupo.

However the Statements of Agreed Facts also is to the effect that although he was terminated, he continued to serve the Police Force until 25 May 2002 until he was removed from the Police Force payroll.

The admission also is that the plaintiff was not served a copy of the charge. The issue then is whether the plaintiff should have been terminated relying on the charge under s.43 (c) of the repealed act considering the effects of repealed act is that it no longer exists.

The defendant's only submissions in relation to this point apart from what is raised in his written submissions is s.157 of the Police Act 1998 which reads;

"157. REPEALS AND SAVINGS

(1) The Police Force Act (chapter No. 65) is repealed.

(2) The repeal of the Police Force Act does not affect the validity of anything done under that Act and all Orders, Commands, Decisions and other things given made or done under that Act which were in force immediately before the commencement of this Act continue in force as if given made or done under this Act.

(3) Proceedings commenced under the Police Force Act continue as if that Act had not been repealed.

(4) The Police Force Regulation is continued as if made under this Act.

(5) Where in any other enactment there is a reference to the Police Force Act (chapter 65), such reference shall be read as if it were a reference to this Act and a reference to a portion of the Police Force Act shall be read as if it were a reference to the corresponding portion of this Act."

Counsel for the defendant submits relying on s.157 (2) of the Police Act 1998 that even though the Police Force Act has been repealed, it does not affect the validity of anything done under that Act and that all orders or decisions done under that Act which were in force immediately before the commencement of this Act continue in force as given, made or done under this Act (my emphasis).

In this case, the plaintiff was charged after the Police Force Act chap. 65 was repealed. If he were charged whilst the repealed act was still in force, then in my view s.157 (2) would apply in validating the action taken under s.43 (c) of the repealed act. However, in this case, the original act under which the plaintiff was charged was already repealed. Therefore the effects of the repeal as submitted to me by counsel for the plaintiff is that the Act is completely obliterated from the records, as if it had never been passed and it must be considered as a law that never existed (see Kay v. Goodwin (supra)). The law is specific that the operation of this principle is subject to any savings which is made expressly or by implication by the repealing enactment. In this case, s.157, the repeals and savings provision in the Police Act 1998, states in no uncertain terms that if a decision or order was made under the repealed act, when it was still in force, then the repeal of that Act does not affect the validity of anything done before its repeal. But that is not the case here. In this case the plaintiff was charged after the Act was repealed under a repealed provision, in this case s.43 (c). (my emphasis). The plaintiff, should have been charged either;

1. Before the repeal, under s.43 (c) of the Police Force Act Chap. 65 or;

2. Under part IV of the Police Act 1998 (discipline provisions), after the repeal;

for s.157 to then be effective. In this case, s.157 of the Police Act 1998 is not applicable.

I find the defendant's submissions to be misconceived and misleading.

As a flow on from the defendant's submissions on s.157 of the Police Act 1998, I find that the defendants cannot now rely on provisions in the Police Act 1998 to submit that the plaintiff was afforded the opportunity to respond to the charges but did not respond thereby resulting in the defendant's determining charges under division III of the said Act, in the plaintiffs absence. In fact, throughout the defendant's written submissions, it continues to refer to provisions under the Police Act 1998 that the plaintiff could have had recourse to but did not. This is a clear misapplication of the various provisions of the Police Act 1998 relied on by defendant's counsel in his written submissions filed on 18 June 2004.

It is plainly obvious that the defendants had erred in charging the plaintiff under s 43 (c) of the Police Force Act Chapter 65, after it was repealed. Section 157 of the Police Act 1998 does not validate their actions therefore all other provisions under the Police Act 1998 does not apply to the plaintiffs case.

Second issue – whether the first defendant breached principles of natural justice in his determination of the charge against the plaintiff;

In his affidavit filed on 18 June 2004, the plaintiff deposes that he was not served with a Serious Disciplinary report dated 16 March, 1999 on 26 April, 1999 as claimed by the defendant. This is deposed to in Chief Sergeant Alphonse Maipe's affidavit sworn on 20 November, 2003 at paragraph 7. The anomalies I perceive to be most glaring are that Inspector M.P. Sege claims to have personally served the plaintiff on the 27 April, 1999. However, Chief Sergeant Alphonse Maipe's affidavit deposes at paragraph 7 that the Serious Disciplinary charge report which is the same report dated 16 March, 1999, was served on the plaintiff on 27 April, 2003.

Again, from 4 November, 1999 (when the offence was committed) to 25 May, 2002, the plaintiff continued to perform his duties as a policeman. Prior to that on 15 March 1999, he was convicted by the Kundiawa District Court for an offence under s.140 of the Criminal Code Act – permitting an escape and was fined K200.00. The District Court also ordered that he be demoted from the rank of Senior Constable to First Constable.

It appears that although the plaintiff may have been served the charges, that there is inconsistent evidence as to when he was served. That even after the Police Force terminated the plaintiff on 13 November, 2001, that he continued to work as a policeman and to receive salaries until 25 May, 2002.

But, as to this issue now before the court, I have before me on the court file, Statement of Agreed and Disputed Facts and Legal and Factual Issues filed on 28 November, 2003 and which is signed by David Dotaona, lawyer for the plaintiff and S. Bonner, defendant's lawyer, which states agreed facts, that go to prove or establish that the plaintiff was not accorded the right to a fair hearing. It shows the defendants agree they were wrong in terminating the plaintiff in the manner they did. These agreed facts as taken from the said statement are;

"11. The plaintiff was not given an opportunity to reply to the Serious Disciplinary Offence of 16 March, 1999;

16. The plaintiff was not served with the Notice of Penalty for Serious Disciplinary Offence at the date of termination on or about 13 November, 2001;

17. The plaintiff was not given an opportunity to make submission on penalty before being terminated from Police Force;

20. The plaintiff wrote a letter to the Commissioner of Police dated 20 September, 2002, seeking reinstatement into the police Force but the Commissioner of Police did not reply to the letter;

21. The plaintiff also sought assistance from a Member of Parliament the Honourable Robert Kopaol who made representation to the Commissioner of Police for the reinstatement of the plaintiff to the Police Force."

The facts stand admitted, as shown above, that the defendant admits that the plaintiff was not given an opportunity to respond to the charges, etc.

As I said above, the evidence is also that even after the charges were supposedly laid against the plaintiff and dealt with by the criminal courts and he was formally terminated on 13 November, 2001, that he remained on the defendant's payroll for another 2½ to 3 years, performing the duties of a policeman and he was paid for it. However, he was not advised of any of the steps being taken by the Police Commissioners office in the laying of charges and thereafter, the subsequent administrative process that enabled his dismissal.

I find that the defendants did not accord the plaintiff a fair right to a fair hearing and a right to be heard.

Third issue – whether the decision to terminate the plaintiff was unreasonable and excessive in the circumstances.

I find I need not consider this issue because I have already found that the first defendant had erred when he charged the plaintiff under the repealed act. There are also admissions by the defendants that the plaintiff had not been accorded the right to a fair hearing. Therefore on that basis, I find that because the plaintiff did not or was not given an opportunity to respond to the charge, that punishment should not have been imposed in the first place.

Orders

The court makes the following orders;

1. A declaration that the decision of the then Commissioner of Police Mr Joseph Kupo to terminate the plaintiff's employment from the Police Force on or about 13 November, 2001 is in breach of principles of natural justice and is null and void and of no effect;

2. An order in the nature of certiorari bringing up the Police Commissioner's decision of 13 November, 2001 to terminate the plaintiff's employment with the Police Force, and that this decision shall be quashed, forthwith;

3. That the Police Commissioner shall reinstate the plaintiff to the Police Force to hold the rank of First Constable;

4. That the Royal Papua New Guinea Constabulary shall pay the plaintiff's salaries and entitlements owing to him since his removal from the payroll on 25 May, 2002 and that the salaries and entitlements shall be assessed up to the date of payment.

5. That the defendants shall pay the plaintiff's costs of these proceedings, to be taxed if not agreed.

Lawyer for the plaintiff: Dotaona Lawyers.
Lawyer for the defendant: In-house lawyers.