Vaikawi v Commissioner of Police [2023] SBHC 20; HCSI-CC 490 of 2019 (21 March 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Vaikawi v Commissioner of Police
Citation:
Date of decision:	21 March 2023
Parties:	Captain Luke Vaikawi v Commissioner of Police, Deputy Commissioner of Police
Date of hearing:	2 August 2021, 31 August 2022
Court file number(s):	490 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Order Claimant’s claim be dismissed accordingly. 2. Cost of this hearing be paid by the Claimant to the Defendants on standard basis if not agreed upon.
Representation:	Mr. G. Gray for the Claimant Mr. S Banuve and Mr B. Pitry for the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Police Act S 42, 112 (d), S 11 (r), S 2,S 132 (1) Road Transport Act S 40 (1),S 43 (1) (a), S 7, S 8 (1), S 20 (1), Constitution S 121 (1),
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 490 of 2019

BETWEEN

CAPTAIN LUKE VAIKAWI
Claimant

AND:

COMMISSIONER OF POLICE
First Defendant

AND:

DEPUTY COMMISSIONER OF POLICE
(Administration)
Second Defendant

Date of Hearing: 2 August 2021, 31 August 2022
Date of Judgment: 21 March 2023

Mr. G Gray for the Claimant
Mr S Banuve and Mr B Pitry for the Defendants

JUDGMENT

Faukona, DCJ: A claim in Category C was filed by the Claimant on 3^rd September 2019. Two reliefs were sought in the claim.

2. One, a declaration order was sought that the first Defendant’s decision to accept the Claimant’s resignation had contravened S.42 of the Police Act, in the circumstances where the Claimant was coerced by the 1^st and 2^nd Defendants to resign from RSIPF, thereby nullifying the decision as null and void.
2. Secondly a consequential order for reinstatement of the claimant’s employment with the RSIPF.

Background facts.

3. The Claimant was recruited into Royal Solomon Islands Police Force (RSIPF) in 1998 and had served in the Police Force mainly in the Maritime Division.
4. On 1^st March 2018 the Claimant involved in a traffic accident attributed to alcohol influence. As a result he was arrested and charged by Police for five traffic offences. They are; careless driving contrary to S.40 (1) of Road Transport Act. Presence of alcohol in person’s blood contrary to S.43 A (1) (a) of the same Act. Motor Vehicle to be licensed contrary to s.7 of the Act, Motor vehicle to be insured contrary to S.8 (1) of Third Party Insurance Act and Drivers to be licensed contrary to S.20 (1) of Road Transport Act.
5. On 3^rd March 2018, the Claimant was formally suspended from work without pay. The Claimant had pleaded guilty to all the charges on 29^th March 2018 and was sentenced to fine of $7,000.00 for charges of careless driving, presence of alcohol in his blood, and drivers to be licensed. The other two charges were convicted without imposition of penalty.
6. Following the criminal convictions and sentencing in the Magistrates Court, the first Defendant embarked on disciplinary proceedings against the Claimant.
7. On 17^th July 2018 the First Defendant issued a show cause notice (letter) to the Claimant why he should not be dismissed from RSIPF by the Police and Prison Service Commission, if he should recommended to be.
8. Whilst, considering the letter to show cause the second Defendant arranged to meet the Claimant at King Solomon Hotel. A further meeting with the Claimant and his Counsel on 12^th October 2018 at second Defendant’s Office at Rove.
9. The purpose of the two meetings as reflected by the sworn statement of the Second Defendant, was to convey to the Claimant two options, considering his criminal convictions and the length of his service as a Police Officer. The two option is whether the Claimant should voluntary resigned, or be terminated upon recommendation to Police and Prison Service Commission.
10. The major emphasis of the letter to show cause is in paragraph 6, which the first Defendant had identified six serious considerations. One perhaps the prime one too, is that the Claimant was convicted of serious offences. In the second last paragraph the first Defendant was considering recommending a dismissal to the Police and Prison Service Commission.
11. In his reply to the show cause letter, the Claimant did not dispute that his conviction gave rise to disciplinary offences under the Police Act which ultimately warranted his suspension on 3^rd March 2018.
12. He also conceded that he had committed a breach of disciplinary offence under S 118 (r) of Police Act.
13. But did not conceded to breaching of S.112 (d) of Police Act. Which refer to offences punishable for imprisonment of 5 years or more. And that the traffic offences he was charged for did not constitute the minimum sentence. Maximum penalties for all those offences has never near to 5 years. The highest is presence of alcohol which carry the maximum penalty of 12 months imprisonment.
14. At that time of compiling his argument, the claimant was of the opinion that by committing breach of discipline or and committing a major disciplinary offence, which did not constitute serious offences as defined in S. 2 of Police Act.
15. Therefore to suggest any dismissal as an option form of disciplinary action in the show cause notice is an act of coercion.
16. The act of coercion was further applied in the two meetings the second Defendant had with the Claimant. The Claimant also informed the Court that long service benefit (LSB) uttered by the second Defendant at the meetings was used as bait to lure the Claimant to file notice of resignation.
17. However, the Claimant contested that resignation contemplated under s.42 of Police Act is voluntary, where a Police Officer on his own volition voluntarily resigns from the Police Force. No more force from the outside to induced him.
18. As the Claimant alleged, it was the powerful coercion by the letter containing notice to show cause and the meetings with the second Defendant on those two occasions, had induced him to tender his resignation letter on 15^th October 2018.
19. The Claimant’s entire contemplation was focusing on fair and just treatment in dealing with his case. In doing so he attempted to reflect past vehicle accidents without termination. However, that is a clear assumption without real evidence of proof available in court.
20. One important aspect ought to realize and acknowledge is that a Police Officer is a member of a discipline force. A Police Officer of whatever rank when convicted of criminal activity ought to be dealt with by the Commissioner of Police in terms of discipline in accordance with the Police Act.
21. In dealing with such subject, the Commissioner derives his powers under S. 121(1) of the Constitution to recommend to the Police and Prison Service Commissioner to dismiss or reprimand or demotion in rank, of any particular Police Officer.
22. However, S. 132(1) of Police Act, further confer upon the Commissioner statutory power to impose, among others, dismiss a convicted Police Officer of a Criminal offence. That power can be exercised mandatorily with discretion.
23. By hinting dismissal as a line of action in his letter to show cause, simply implicate the Commissioner was considering dismissal as a cause of disciplinary action to take. A further elaboration at the two meetings with the Claimant should confirm a most probable disciplinary step to be taken.
24. By informing the Claimant frankly of his right of choice of an intruding consequence was a saving grace, as I would perceive?
25. If the Claimant had decided and refused resignation the consequence is probable. He will definitely be terminated. And it will be up to him to appeal.
26. The consequence of prior warning by conveying of options was purposely, in my view, to assist the Claimant made the right decision that will go a long way and not coercing him. If he has to be terminated, his character will be demeaned to zero. His future will look dim. He will be a subject of talk among his own family, close relatives, in his community and on his island, and among his previous colleagues and piers.
27. I am optimistic that the Claimant had taken the right course in resigning. He was not coerced to do so. He was not coerced as he alleged, but information for his own good and future. Mention of loss of long service benefit was not a core usage for bait to lure or induced the Claimant, but indeed was a real fact. If he resigns, which he opted to, his entitlement for LSB remains a source of income for him. But if he was terminated he will lose financial resources and character degradation which he had built and maintained as a carrier for many years.
28. Humans must learn to appreciate that value of character or reputation outweighs all materialisms on earth. A man may die and gone, but the legacy of his reputation remains alive as memories to his family and those who come to know him personally.
29. A man can build on work ethics and good reputation for years in his carrier, but once sacked, whatever value achieved in the long service will come crashing and quash to zero, no recognition in the community and among one’s own family and relatives. What remains is question after question, why, why...?
30. With those reasonings I have alluded to above the best conclusion I would adjudge is to dismiss the Claimant’s claim accordingly.

Orders:

1. Order Claimant’s claim be dismissed accordingly.
2. Cost of this hearing be paid by the Claimant to the Defendants on standard basis if not agreed upon.

THE COURT.
Hon. Justice Rex Faukona.
DEPUTY CHIEF JUSTICE