Nat-Naour v Police Service Commission [1998] VUSC 52; Civil Case 001 of 1995 (10 September 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 1 OF 1995

TOM ANDREW NAT-NAOUR
of Port-Vila, Efate, Vanuatu
Plaintiff

AND:

THE E SERVICE COMMISSION
r> c/- Police Headquarter, Port-Vila, Efate, Vanuatu
Defendant

>Counsel: Plaintiff tiff on his own behalf assisted by John Timakata
 p; &nnsp;&&nsp;&nnbsp; &nsp; &nack Kor tfor the defe defendant

Hearing: 7 Septemeptember 1998
Judgment: 10 Septem998JUDGMENT MENT OF TOOF TOMPKINMPKINS J

The >The plaintiff was, at all material times, a Superintendent of Police and Head of the Police Special Branch. On 17 February 1994, the Prime Minister suspended the plaintiff from carrying out his official duties. On 9 September 1994, the defendant dismissed the plaintiff from his position as Superintendent of Police and Head the Police Special Branch. On 10 January 1995, the plaintiff commenced these proceedings, challenging the validity of the suspension and the dismissal.

Introduction

On 13 January 1995, this Court ordered that leave be granted to the plaintiff to commence these proceedings seeking orders of mandamus, prohibition and certiorari. On 25 September 1995, the plaintiff was granted interim orders preventing the defendant from terminating the services of the plaintiff, and restraining the Commissioner of Police from taking any steps in respect of that decision, and from removing the plaintiff and his family from his official government quarters. It is not apparent from the Court file whether any further action has been taken in respect of those interim orders.

The defendant has at no time taken any steps in the proceeding. No statement of defence has been filed, nor are there any affidavits filed on behalf of the defendant in reply to the affidavit of the plaintiff.

On 13 August 1998, I held a conference in this case. Mr Hakwa appeared for the plaintiff, Mr Kalsakau for the defendant. I ordered that the defendant was to file affidavits in reply within 14 days of that date, with the plaintiff having the right to file affidavits in response within a further 7 days. I further ordered that the case be given a fixture for the week commencing 7 September. The defendant did not file any affidavits within 14 days or otherwise. When this matter was called at callover on 3 September 1998, the defendant was not represented. I directed that it be heard on 7 September 1998.

When the matter was called before the Court that day, there was again no appearance on behalf of the defendant. As a result of a telephone call from Mr Timakata, Mr Kilu then appeared. He advised the Court that he had little knowledge of the matter, and that Mr Kalsakau, who had been handling the file for the defendant, was in Fiji. I directed that the plaintiff was entitled to have his case heard. The hearing proceeded undefended.

The factual background

The plaintiff’ joined the Police Force in or about 1978. He describes his service in various posts, and also makes reference to several commendations he received from the Commissioner in connection with his work. Some of these are produced.

On 7 February 1994, the Prime Minister and Minister of Police wrote to the plaintiff in these terms:

"I hereby inform you that under the powers vested in me as Minister for Police under section 70(1)(a) of the Police Act [CAP 105] you are interdicted from duty pending the outcome of investigations into an allegation you failed to pass on information known to you as directed by the Acting Commissioner of Police."

From that day until his dismissal he was on half pay and did not carry out any police duties. On or about 19 July 1995, some five months after his suspension, the plaintiff received a letter dated 19 July 1994 from the Acting Commissioner of Police. It reads:

"I have received a report from the Prime Minister’s Office regarding the incident of 8th February, in which the VPSA Strikers and other Unionists threatened to cripple the government by picketing and obstructing other government officers from their place of work. I am also aware that as a result of this, you have been suspended by the Prime Minister and Minister Responsible for the Police.

Due to the seriousness and lack of information supplied, which was purely your duty, and in Accordance with the Police Act CAP 105 section 19(u), I have no alternative but to charge you as follows:-

Statement of offence

Fail to disclose to your superior officer, facts which it was your duty to disclose, namely prior information about the action taken by the VPSA and other Unions on 8th February 1994.

By copy of this letter, I am requesting the Chairman of Police Service Commission to set up a date in which the charge against you may be heard."

That letter had annexed to it a formal notification of disciplinary proceedings that contained the same charge and particulars as the letter. The reference in the letter to s.19(u) of the Police Act (CAP 105) ("the Act") is an error. It should have referred to rule 19(u) of the Police Rules.

The plaintiff deposes that upon receipt of that letter he made further enquiries as to the precise nature or particulars of the charge as he considered none were provided in the letter. He was not able to obtain any particulars, but was merely told that he "had failed to provide information in relation to the Vanuatu Public Service Association." However, he did endeavour to explain to somebody, his affidavit does state to whom, the situation about information relating to VPSA.

On 9 September 1994, he attended before the defendant. The following is his account of the events that occurred, as set out in his affidavit.

"(a) The new Commissioner was supposed to bring the charge against me before the Commission, but he did not do so; he just sat there doing nothing.

(b) The Chairman, Waimini Perei did not read the charge against me nor did he ask me whether I should take a plea.

(c) The Commission did not call one single witness to testify against me.

(d) The Commission did not consider nor showed me any documentary evidence against me.

(e) Mr Perei spoke on behalf of the Commission, he informed me that the Commission had looked at the charge against me and had found me guilty of the charge, and he asked me whether I had anything to say.

(f) I protested and objected in the strongest possible term as to the way the Commission had conducted this purported hearing; although I was not asked, I told the Commission that I do not (and never have) plead guilty to the charge or any other charge, and that the Commission must hear my case in the proper manner and as required by the law. I requested in particular that the hearing should be adjourned to enable me to call my witnesses but the Commission refused my request.

(g) I told Mr Perei that now that I have pleaded not guilty, the Commission should call its witnesses so that I could have the chance to cross-examine them, but the Commission informed me that there was no need for that, and instead asked me to leave the meeting room for a little while.

(h) When I returned to the meeting room again, the Chairman announced that the Commission had made up its mind, and that it would dismiss me from my job as Superintendent in Charge of Special Branch.

(i) I was more than surprised at the attitude taken by the Commission ; I could not believe that the Commission could conduct a hearing in this manner, especially when the Chairman is a former Police Officer, and the new Commissioner himself was also present ; I informed them of my intention to lodge an appeal."

On 12 September 1994, he wrote to the Prime Minister appealing against the termination of his service. On 4 October 1994 he received a reply from the chairman of the defendant advising that his appeal was refused.

The relevant statutory and regulatory provisions

The plaintiff was a "senior officer" as defined in the Act, meaning any member of or above the rank of Inspector.

Section 66 of the Act, which governs disciplinary proceedings against senior officers, provides:

"66. A senior officer who commits an offence against discipline prescribed by this Act or by any Regulations made hereunder shall be dealt with and punished in accordance with sections 67 and 71."

Section 67 deals with the disciplinary powers of the Commission. The relevant parts provide:

"67(1) A charge of an offence against discipline alleged to have been committed by a senior officer shall be reported by the Commissioner without unnecessary delay to the Commission which shall enquire into the truth of the charge.

(2) The Commission, if it finds the charge proved, may impose on the defaulter one of the following punishments-

(a) dismissal from the Force ;

(b) ..."

The Act sets out various acts which constitute an offence against discipline, none of which apply to the charge in the present case. Relevant to that charge is Rule 19(u) of the Police Rules. It provides :

"19. Any member of the Force who –

(a) makes any report which he knows to be false or inaccurate in some material particular or fails to disclose to his superior officer facts which it is his duty so to disclose ;

shall have committed an offence against discipline."

The suspension

The power to suspend, or as the Act puts it, to interdict from duty any senior officer is contained in s.70(1), the relevant parts of which provide:

"70(1) The Minister may, on the recommendation of the Commissioner and at any time, interdict from duty any senior officer pending-

(a) an enquiry under s.67(1) into any disciplinary offence of which he is charged ;

The first ground advanced for challenging the validity of the suspension is that it was without the recommendations of the Commissioner (at the time he was an Acting Commissioner) as required by s.70(1) of the Act. I accept that under the plain words of section the Minister cannot interdict from duty any senior officer unless he or she first has a recommendation of the Commissioner that such an officer should be suspended.

I do not consider, on the information currently available, that it is open to the Court to find that the Minister did not have any such a recommendation. The letter of 17 February 1994, informing the plaintiff that he had been interdicted from duty, is stated to be under s.70(1)(a) of the Act. In the absence of evidence to the contrary, it is to be presumed that the Minister will have acted in accordance with that section. If the plaintiff wished to prove that he had not, the plaintiff should, by means of discovery, have obtained all relevant documentation relating to the suspension. They should disclose whether the appropriate recommendation had been made. The plaintiff has not done so. He has failed to establish that ground.

The second ground is that he was suspended when there was no charge preferred against the plaintiff pursuant to s.67(1) of the Act. The Minister may only suspend pending an inquiry under s.67(1) into any disciplinary offence "of which he is charged". Therefore, before the Minister can suspend under the section, there must be a charge. That means a charge particulars of which have been served on the person to be charged at or before the commencement of the suspension. In the present case it was not until 19 July, five months after the suspension, that the plaintiff was served with the charge. It follows that the suspension under s.70(1)(a) was without jurisdiction and therefore invalid, until the service of the charge on 19 July 1994.

The third ground is that the suspension was in breach of the rules of the natural justice. No particulars are provided in the statement of claim. I do not consider this ground to be made out.

The charge

The plaintiff alleges that the charge was defective because it was not issued in the prescribed form, it was not signed by the Commissioner and no sufficient particulars are disclosed to the plaintiff. There is no substance in the first two grounds. Neither the Act nor the Police Rules require the charge to be in a prescribed form nor to be signed by the Commissioner.

There is some substance in the third ground. The charge is notably lacking in particularity. It does not say what is the "information" about the action of the VPSA and the Unions. It does not say what it was about that information which required its disclosure to his superior officer. Rule 7 of the Police (Senior Officers) Disciplinary Procedures Rules required the Commissioner to serve on the plaintiff "a copy of the charge and copies of all copies of statements relevant to the charge and hearing". No written statements were served. The general rule is that the particulars set out in the notice of hearing should be sufficiently explicit to enable the interested party to understand the case he has to meet and to prepare his answer and his own case: Halsbury’s Laws of England 4th Ed. para.95. I accept that lack of particularity in the charge can be cured by further information of the nature of the allegations made, supplied to the person charged prior to or even sometimes at the hearing. On the plaintiff’s account of what occurred, no such further information was provided. I do not consider that this lack of particularity would, on its own, justify quashing the decision. But it is a factor to which regard can be had, along with any other grounds made out.

The decision

The plaintiff challenges the validity of the defendant’s decision to terminate his employment on a number of grounds.

He refers to nine of the Rules contained in the Police (Senior Officers) Disciplinary Procedure Rules, of which I consider the following to be relevant.

Rule 5 requires a record of the proceeding to be taken by a member appointed by the Chairman. It also provides that any party who appears shall be entitled to inspect the transcript, and that the senior officer who gives notice of appeal to the Minister shall be entitled to a copy of the transcript. The evidence does not establish whether a record of the proceedings was taken. The statement of claim alleges that the Commission failed to allow the plaintiff access to the transcript and has failed or neglected to give a copy thereof to the plaintiff, an allegation which is not denied.

Rule 7, as I have already indicated, requires copies of all written statements relevant to the charge and the hearing to be supplied to the plaintiff. No such copies were supplied to him. It is a reasonable inference that there was some material before the Commission on which it based its decision, but according to the plaintiff’s evidence, none was made available to him. Not only was this a breach of the Rules, it was also a fundamental and significant breach of the rules of natural justice. As it is stated in Halsbury para.96 :

"...it will generally be a denial of justice to fail to disclose to a party specific material relevant to the decision if he is thereby deprived of any opportunity to comment on it. Only in exceptional circumstances is it permissible for any tribunal to make use of private knowledge of a party which is undisclosed to all parties, and in any event such knowledge may give rise to a likelihood of bias."

Halsbury goes on to say that the general principles that evidential material obtained from an outside source must be disclosed for comment, and that in the absence of express authority a tribunal must not receive or appear to receive evidence ex parte and fail to disclose it to an interested party, are well settled.

On the uncontradicted account of the hearing given by the plaintiff, no witnesses were called. It is an obvious inference that the Commission had been supplied, presumably by the Commissioner, with reports or other written evidence upon which it reached its conclusion. The plaintiff says that he was not shown any such documentary material.

The plaintiff alleges that the Commission failed to call any evidence to prove the charge against him, and failed to give a reasonable opportunity to him to defend himself against the allegations and for the plaintiff to call any witness of his own choice in his defence. These allegations are made out. Concealing the material upon which the Commission relied deprived the plaintiff of the opportunity to defend himself. Further, on his evidence, he made it clear that he wished to call witnesses, but his request to do so was refused.

These are serious breaches by the Commission of the obligation to be fair. They deprived the plaintiff of the opportunity adequately to test the case against him, and to put his defence to the charge. They are breaches of the some of the rules of natural justice. They invalidate the decision to dismiss.

The appeal to the Minister

Section 69(1) of the Act gives a senior officer who has been found to have committed an offence against discipline a right to appeal to the Minister. The plaintiff exercised that right. He challenges the Minister’s decision dismissing his appeal on a number of grounds. I do not propose to examine them in detail as I do not consider that any of them have been made out.

Conclusion

The decision of 17 February 1994 to suspend the plaintiff from carrying out his official duty was invalid. The decision of the defendant to dismiss the plaintiff from the Police Force was also invalid. There will issue a Writ of Certiorari quashing both decisions.

Remedy

In his statement of claim the plaintiff sought a writ of mandamus directing the Commission to re-instate him. However, he now recognises that that remedy is not appropriate. Instead, he seeks damages for wrongful dismissal, a remedy which, on the findings I have made, is available to him. He was not in a position at the hearing to provide detailed evidence in support of that claim, nor have any particulars of damages been provided to the defendant. The plaintiff is, within 7 days of the delivery of this judgment, to provide full particulars of his claim for damages by filing those particulars in the Court and serving them on the defendant.

The action is adjourned to 8.30am on Friday 18 September, when I will hold a hold a conference of counsel or the parties to fix a date for the resumed hearing.

BY THE COURT

TOMPKINS J.