Ron v Minister of Internal Affairs [2001] VUSC 104; Civil Case 037 of 2001 (26 September 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Administrative Law Jurisdiction)

Civil Case No.37 of 2001

IN THE MATTER OF: An Application for Leave to apply for

Orders of Certiorari and Mandamus,

and the provisions of the Police Act [CAP.105] and the Constitution

BETWEEN:

VICTOR RON

Applicant

AND:

THE MINISTER OF INTERNAL AFFAIRS

First Defendant

AND:

THE POLICE SERVICE COMMISSION

Second Respondent

Date of hearing: Monday 24th September, 2001, 8:15 a.m.

Coram: Mr Justice Oliver A. Saksak

Clerk: Ms Cynthia Thomas

Counsel: Mr Saling N. Stephens for the Applicant

Mr Tom Joe for the First and Second Respondents.

RESERVED JUDGEMENT

On an ex parte summons issued under Order 61 of the High Court (Civil Procedure) Rules 1964 heard inter partes, the Applicant seeks leave of the Court to apply for Orders of Certiorari to quash the decision of the First Respondent made on 5^th January 1999, and for Orders of Mandamus to command the First Respondent to uphold the Applicant’s appeal of 22^nd December 1998. He alleges failures to observe principles of natural justice on the part of both Respondents.

The Application for leave is supported by a statement by the Applicant filed pursuant to Order 61 Rule 2(2) of the High Court Rules. By it the Applicant states that –

(a) no witnesses were called by the Respondents to give evidence against the Applicant;

(b) there was a denial to the Applicant to cross-examine any witnesses;

(c) there was no discovery and inspection of relevant documents by the Respondents;

(d) the Applicant was denied the right to call witnesses in his defence; and

(e) the Respondents have not provided reasons for their findings.

The Application is further supported by the affidavit of the Applicant which has been read into evidence. The facts as drawn from the affidavit show the Applicant, a Police Inspector first joined the British Police constabulary since May 1975. Into and after Independence in 1980 the Applicant became a member of the Vanuatu Police Force. Prior to 17^th December 1998 he headed the special Branch Department as Inspector and was demoted to Senior Sergeant by the Police Service Commission on 17^th December, 1998. He was interdicted by letter from the then Minister of Internal Affairs on 24^th August, 1998. On or about 8^th November 1998 he was served with formal disciplinary charges totalling five(5) counts. He appeared before the Police Service Commission on 17^th December, 1998 and pleaded not-guilty to all the five charges against him. He alleges that he requested for an opportunity for his witnesses to be heard but that request was refused by the then Chairman of the Commission. After about five minutes of consideration the Commission returned a verdict of guilt on all the five counts and accordingly demoted the Applicant to the rank of Senior Sergeant. He was then advised of his right of appeal to the Minister and that if he wished to do so he should appeal within 14 days. The Applicant appealed on 22^nd December, 1998 through the office of the Police Commissioner. Then on or about 27^th January 1999 he received a letter dated 5^th January 1999 from the Minister informing the Applicant that the findings of the Commission had been confirmed and that his suspension had been lifted. The Applicant alleges that the Minister had not heard him prior to taking the decision to confirm the Commission’s findings. Then on 3^rd March 1999 the Applicant made a formal complaint to the Ombudsman to investigate the matter. There has been no report yet from the Ombudsman. That being so the Applicant has come to the Court to seek Orders of Certiorari and Mandamus.

In his submissions Mr Joe for the Respondents referred me to Section 63(2) of the Police Act [CAP.105]. This provision concerns appeals to the Commissioner to the Commission within 7 days after such decision was made.

In my view this provision is not applicable. Firstly the Applicant was an Inspector. Secondly he was dissatisfied with the decision of the Commission, not the Commissioner.

I was also referred to section 70(1) of the Act which is read in connection with section 67(1) of the Act. Unfortunately I see no relevance of those provisions.

Finally I was referred to Order 61 Rule 3 of the High Court Rules 1964 which provides that leave to apply for an Order of Certiorari shall not be granted unless the application for leave is made not later than six (6) months after the date of the proceeding. It is further submitted that the Applicant has not provided sufficiently good reasons or grounds why he has not applied for leave within the six months allowed by the Rules. Mr Joe submits that he who sits on his rights loses those rights.

In his response Mr Stephens submitted that despite the provisions of Order 61 Rule 3, the Applicant had chosen to refer his case to the Ombudsman to investigate, which is an institution created by law and therefore any delays taken by that Office to complete its investigation is not within the control of the Applicant. That reason should be sufficient.

Those submissions are rejected. The Applicant was perfectly entitled to refer his complaint to the Ombudsman for investigation but that did not give him the justification for not complying with the requirements of Order 61 Rule 3. He wrote to the Ombudsman on 3^rd March 1999. He has not shown in evidence that he did anything else between that date until the date of filing his application for leave being 29^th August 2001. The matter is more than two (2) years old. It is well outside the six (6) months period required under the Rules. The provisions of the Constitution are quite clear. Article 6(1) provides –

“Anyone who considers that any of the rights guaranteed to him by the Constitution has been, is being or is likely to be infringed may, independently of any other possible legal remedy, apply to the Supreme Court to enforce that right.” (emphasis, mine)

Article 53(1) similarly provides –

“Anyone who considers that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy available to him, apply to the Supreme Court for redress.” (emphasis, mine)

There appears to me some merits in the submissions by Mr Joe on behalf of the Respondents that he who sits on his rights loses those rights. The Applicant alleges that his request for witnesses to be heard was refused. Undoubtedly the Applicant had always had that right but there is a procedure specified by law to follow. It was not enough to make a verbal request during the proceedings. The Applicant should have indicated to the Commission upon service of the charges that he was going to plead not-guilty and that he was going to appear with his witnesses on the date of hearing. By doing that the Commission would have been aware and put on sufficient notice to also summon their own witnesses to be present also during the proceedings on 17^th December 1988.

The evidence concerning the charges against the Applicant is that he was formally charged with five counts on 14^th October, 1998. He was summoned to appear before the Commission to answer to those charges on 17^th December, 1998. It appears that the date appearing on the summon is 1^st December, 1998. The Applicant was served with copies of those charges on 8^th November, 1998.

The summon dated 1^st December 1998 is in fact a Notice of Hearing issued by the Commissioner in accordance with Rule 8 of the Police Regulations. It is a standard Notice set out in the Schedule, Part 1. Rule 9 of the Regulations provides for Notice of Hearing to be served on witnesses. This is provided in the Schedule, Part 2. It appears to me that these are Notices to be served on witnesses for the Commissioner of Police who would be required to testify to prove the charges against the Applicant. Then Rule 10 of the Regulation provides for Notice by Senior Officers.

It reads –

“(1) If a senior officer charged with a disciplinary offence requires the attendance of a witness or witnesses whose written statement has been served on him in accordance with Rules 7, he shall give notice thereof to the Commissioner not less than 7 days before the proposed date of hearing, otherwise such written statements may be tendered in evidence at the hearing.

(emphasis, mine)

(2) A notice under this rule shall be in the form set out in Part 3 of the Schedule annexed hereto.”

Rule 7 of the Regulation reads –

“The Commissioner shall cause to be served on the Chairman and every part due to appear before the Commission at least 14 days before the hearing a copy of the charge and copies of all written statements relevant to the charge and hearing.”

From the evidence it appears that the Applicant was served with copies of the charges laid against him on 8^th November, 1998. He had seven (7) days to do that. Seven days from 8^th November, 1998 would have been due on 16^th November, 1998. There is no evidence that copies of written statements relevant to the charges were also served on him on that date. None-the-less the Applicant was required by Rule 10 to give notice that he would require attendance of witnesses at the hearing on 17^th December, 1988. There is no evidence showing that the Applicant had complied with the requirements of Rule 10 of the Regulations. The Applicant alleges non-disclosure of written statements relevant to the charges by the Respondents but has produced no evidence showing that he wrote or verbally requested for them. It was reasonably expected of him to do so.

When the Applicant wrote to the Ombudsman on 3^rd March 1999 one of his complaint was that he was booked late and arrived late in Vila for the hearing so that there was no time for him to do anything. That is not an acceptable excuse. The Applicant had had more than ample time to comply with the requirements of Rule 10. He always had the right to have witnesses called but that was subject to him giving notice of his intention in the time provided. When he failed to do that, it is inappropriate to shift the blame and burden on the Commissioner and the Commission.

Orders of Certiorari and Mandamus are reliefs having equitable characters. He who seeks to obtain justice by them must themselves seek or be required to do justice. The other side of the coin is that he who comes into equity must come with clean hands. In this case, applying the law to the facts as shown by the evidence, this application must fail and I so rule.

Accordingly I dismiss the Application and order the Applicant to pay the Respondents’ costs of the hearing.

DATED at Luganville this 26^th day of September, 2001.

BY THE COURT

OLIVER A. SAKSAK

Judge