N2108

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 1147 of 1995

BETWEEN

GENO GAPI
Plaintiff

AND

LAWRENCE NEWELL, SECRETARY OF
NATIONAL JUDICIAL STAFF SERVICE
First Defendant

AND

NATIONAL JUDICIAL STAFF SERVICE
Second Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani	:	Sevua, J
2001		:	4th, 6th & 15th June

Employment – National Judicial Staff Service – Termination - Plaintiff was Assistant Secretary Finance at date of termination – Whether he was an Officer – Officer – Meaning of – Qualification for appointment of Officer.

Sections 1, 12, 14 and 16 National Judicial Staff Service Act. 

Held:	1.	At the time of dismissal, the plaintiff was not an officer of the National Judicial Staff Service.
2.	For a person to be appointed an Officer of the National Judicial Staff Service, he must provide evidence of, and the Secretary of the National Judicial Staff Service must be satisfied of the requirements under Section 12 of the National Judicial Staff Service Act.

Cases referred to:
Richard Tau v. Lindsay Lailai & The State, N1220, 12th May, 1994.

Counsel:
K. David for Plaintiff
P. Kuman for Defendants

15th June, 2001

SEVUA, J :	The plaintiff’s writ of summons claims the following relief:-

1.	An order declaring that the purported termination of the plaintiff on 21st April, 1995 is null and void and of no legal effect;
2.	An order that he be reinstated as an employee of the Second Defendant and in turn as an officer or servant of the Third Defendant and in particular, to the position of Deputy Secretary of the Second Defendant;
3.	Damages;
4.	Interest, and
5.	Costs.

At the commencement of the trial, the plaintiff’s counsel, Mr David, in opening the plaintiff’s case, said that the plaintiff’s evidence would show that, firstly, the first defendant had no authority to terminate the plaintiff’s employment; secondly, the plaintiff was treated as a casual or ordinary employee when he was not; thirdly, the plaintiff was denied the appeal process under the National Judicial Staff Service Act; fourthly, the charges laid against the plaintiff were of no substance; fifthly, the defendants had exercised authority unlawfully, but the plaintiff denied the first defendant had any authority, and finally, the termination of the plaintiff was excessive.

The facts are not really in dispute as the defendants’ contention is that the issue in this case is one of law. Nevertheless, I will outline the relevant parts of the plaintiffs evidence.

In response to a 1991 Post Courier advertisement, the plaintiff applied for the position of Assistant Secretary Finance within the National Judicial Staff Service. On 6th January 1992, Collin Murray, the former Secretary of the second defendant advised the plaintiff in writing of his successful application and requested the plaintiff to commence in February 1992. On 27th January 1992, the plaintiff advised that he had accepted the offer and resigned from Department of Works and would commence with the second defendant on 10th February 1992. The plaintiff was thereby appointed the Assistant Secretary Finance, of the second defendant as of that date.

On 29th August 1993, the present Chief Justice advised all staff members of the second defendant by a circular that the plaintiff, would be Acting Secretary of the second defendant as of 7.45 am that day due to the retirement of Collin Murray as of 27th August, 1993. On 13th September 1993, the Chief Justice advised the Attorney General and Minister for Justice, Hon. Philemon Embel, of the plaintiff’s appointment by the Judicial and Legal Services Commission as Acting Secretary and requested the Minister to sign the Instrument of Appointment. On 20th September 1993, the Minister signed the Instrument of Appointment thereby effecting the appointment of the plaintiff as Acting Secretary of the second defendant.

On 4th October, 1994, the Chief Justice advised the plaintiff that the first defendant Lawrence Newell, had been appointed by the Judicial and Legal Services Commission, as Secretary of the second defendant effective from that date. It would appear, although there is no direct evidence, that the plaintiff reverted to his substantive position of Assistant Secretary Finance thereafter.

On 3rd March, 1995, the first defendant charged the plaintiff with four offences pursuant to s.14 (i) of the National Judicial Staff Service Act 1987 (the Act). The charges were related to allegations of disgraceful or improper conduct associated with the purchase of office stationary and other consumables. The first and fourth charges relate to the purchase of office stationery valued at K4,090.40 and K3,476.00 respectively. The second charge relates to the purchase of photocopy paper valued at K7,600.00, while the third charge relates to the purchase of toilet paper valued at K458.90.

The supplier of these materials was one VIMA Enterprises, a business, owned, operated and managed by Daure Gapi, the wife of the plaintiff.

The plaintiff was suspended from duty on the same date he was charged, ie, on 3rd March, 1995. On 10th March, 1995, the plaintiff responded to the charges, and in essence, denied the charges. His explanation was that in respect of the amounts of K4090.00, K7,600.00 and K3,476.00, respectfully, the subject of the first, second and fourth charges, proper procedures were followed. Relevant quotations were obtained prior to processing ILPOCS for the purchases. In respect of the sum of K458.90, the basis of the third charge, the plaintiff said, the financial regulations did not require three quotations for amounts less than K500.00.

There is also an undated memorandum (Exhibit "H") which the plaintiff wrote to the first defendant. In that correspondence, the plaintiff justified the approval of purchase from VIMA Enterprises. He said there were no special reasons for selecting this supplier, which was managed by his wife, but that, the procurement system "automatically allowed the selection of the lowest bidder after obtaining of the three or more quotations" (my emphasis). I will revert to this issue later, however, at this juncture, let me pose this question. Did not the fact that the plaintiff had granted approval for purchase of supplies from a business managed by his wife, raise suspicion of nepotism and corruption, even though, proper procurement procedures, may have been followed?

On 20th April 1995, the first defendant gave two weeks written notice of the second defendant’s intention to terminate the plaintiff’s employment. Finally, on 21st April 1995, the first defendant notified the plaintiff that his employment with the second defendant had been terminated as of that date. A cheque in the sum of K1, 718.58 representing the plaintiff’s entitlements was paid to him.

On 2nd June 1995, the plaintiff lodged an appeal against his dismissal to the Appeal Tribunal, in a letter addressed to its Chairman, Justice Salika. On 15th June, 1995, the Acting Secretary of National Judicial Staff Service, Nobert Kubak, advised the plaintiff that, the appeal process under Part III of the Act was not available to the plaintiff because he was an employee, not an officer. The plaintiff was advised that if he desire to challenge his termination, he could do so in the National Court.

Before canvassing the issues in this trial, let me refer to Exhibit "N". This is a memorandum dated 15th November 1994, which was sent to the plaintiff by the Assistant Personnel Officer Recruitment. The memorandum sets out the procedures of becoming a permanent officer of the National Judicial Staff Service. The plaintiff denied receiving this document. However, the defendants’ witness, Robin Guria, believed the document was received by the plaintiff.

In essence, those are the relevant parts of the plaintiff’s evidence. The defendants adduced evidence from Robin Guria, the current Deputy Secretary Magisterial Services. However, it is not intended to discuss his evidence since it does not affect the plaintiff’s evidence except the variance in respect of the issue of the structure of National Judicial Staff Service at the time the plaintiff was engaged. However, I consider there is not much controversy over such a variance.

In my view, the trial raises the following issues:-

1.	Was the plaintiff an officer or employee of the second defendant?
2.	Was the plaintiff lawfully terminated?
3.	If the termination was unlawful, is the plaintiff entitled to damages?
4.	Was the plaintiff entitled to the appeal process under the National Judicial Staff Service Act?

I consider that Sections 1 and 12 of the Act are relevant to the first issue. I set out those provisions in full.

The term, "officer," is defined in s.1 of the Act as, "an officer in the service, but does not include an employee, or a person employed in a honorary capacity or a person remunerated by fees, allowances or commission only." Section 12 is as follows:

"12.	Qualification for admission to the Service

A person shall not be appointed under this Act as an officer unless -

(a)	he provides evidence to the satisfaction of the Secretary of –
(i)	his health and physical fitness, and
(ii)	his possession of qualifications that will enable him to perform the duties of the office to which he is to be appointed; and
(iii)	his good character; and
(b)	he makes and subscribes the oath or affirmation in the Schedule."

The plaintiff’s counsel submitted that the plaintiff was an officer of the second defendant, not an employee. There were several reasons for this submission. Firstly, because the plaintiff was engaged in a very senior managerial position within the second defendant. Secondly, the Chief Justice, in his memorandum of 4th October 1994 (Exhibit "E") had alluded to certain qualities of managerial leadership the plaintiff possessed. Thirdly, the plaintiff was charged under s.14 of the Act, which provision applies to officers. Fourthly, the procedures adopted in dealing with the plaintiff was s.16 of the Act, which deals with officers. Finally, at the time the plaintiff was employed, there was no structure in place within the second defendant so that he was considered and treated an officer for all purposes.

In essence, the defendants’ counsel, Mr Kuman submitted that the plaintiff was not an officer within the meaning of the Act, as the legal requirements in s.12 were not satisfied. He cited Richard Tau v. Lindsay Lailai and The State, N1220, 12th May 1994, which dealt with a similar situation but under the Public Service Management Act and the General Orders. The Court notes that s.34 of that Act is in very similar terms with s.12 of the National Judicial Staff Service Act.

Having considered both counsel’s submissions and the evidence on this issue, it is clear that the requirements of becoming an officer stipulated in s.12 of the National Judicial Staff Service Act were not fulfilled, except s.12 (a) (ii). I think the Court can assume that when the plaintiff’s application for the position of Assistant Secretary Finance was considered, and the position offered to him, his qualifications were considered. However, the plaintiff, whilst admitting that he was aware of the requirements of s.12, did not comply with that provision. In my view, he could not have been an officer of the second defendant.

I do not think the defendants dispute that the plaintiff was employed in a very senior managerial position and the Court accepts that. The Court also accepts that at one stage the plaintiff was appointed Acting Secretary of the second defendant. But I do not think I can accept the contention that, as there was no structure of the National Judicial Staff Service at the material time, the plaintiff was considered an officer. I consider that the absence of a structure and/or lack of a clear policy in respect of staff members of NJSS when the service was established, did not nullify or invalidate s.12 of the Act. The qualifications of becoming an officer of the National Judicial Staff Service, are requirements of law. A person or a staff member of NJSS cannot become an officer without fulfilling those legal requirements. And if a person desiring to become an officer of NJSS does not satisfy the Secretary of NJSS of the conditions specified in s.12 (a) and (b), he cannot be an officer. In this instance, I am of the view that the plaintiff was not an officer.

The plaintiff may well feel that this whole argument is unfair to him, having been a former senior manager and Acting Secretary of the second defendant, and I think I can appreciate how the plaintiff may feel. However, the requirements of becoming an officer are requirements of law, and it is my view, that these requirements are condition precedent to the right of becoming an officer. In my view, it is analogous to becoming an officer or permanent public servant under the Public Service Management Act without complying with the requirements of s.34 of that Act, and to my mind, that is not the law. Section 34 of that Act, sets out the qualifications of becoming a permanent officer in the Public Service, similar to s.12 of the National Judicial Staff Service Act.

It is correct that the provisions of ss.14 and 16 of the Act, which the first defendant utilized in pursuing disciplinary action against the plaintiff, are provisions which apply to dealing with an officer. And there is no dispute that the first defendant, in using those provisions, had proceeded as if the plaintiff was an officer. However, in my view, that procedure was incorrect, and as the first defendant had utilized them, that fact alone, did not provide an exception to the legal requirements of s.12. In my view, the first defendant erred in the procedures adopted in dealing with the plaintiff. The first defendant had assumed that the plaintiff was an officer, but I find he was not, because other requirements of becoming an officer under s.12 of the Act were not met.

While the plaintiff may now find himself in a very unfortunate situation, it is my view that he was never an officer of the second defendant. I find that at the time of his dismissal, the plaintiff was not an officer of the National Judicial Staff Service because he did not comply with, and did not meet all the requirements of s.12 of the Act. For a person to be appointed as an officer of the National Judicial Staff Service, he must provide evidence of, and the Secretary must be satisfied of, his or her health and physical fitness, qualifications, good character and further, he or she must take the oath or affirmation or subscribe to it. Those are the qualifications for appointment as an officer. Without fulfilling those requirements, he or she cannot be an officer. The plaintiff’s evidence does not prove that he had fulfilled all of those requirements.

I therefore find that the plaintiff was not an officer of the National Judicial Staff Service at the date of his termination. It follows therefore that he is not entitled to the appeal procedure available in s.19 of the Act. Section 16(7) provides a right of appeal however, that right is available only to an officer.

Having made that finding, it is not necessary to determine the other issues. However, I need only say briefly, as I have adverted to earlier, that the plaintiff’s termination was lawful.

While I accept the plaintiff’s evidence that the Procurement Officer had obtained the relevant quotations in respect of the purchase of stationery and recommended the lowest bid, the fact remains that the plaintiff was approving purchase of materials from a business operated by his wife. What would be the public perception? A senior management staff of the National Judicial Staff Service approving or awarding contracts for the purchase of stationaries from his wife? Would not that imply corruption?

The plaintiff probably did not appreciate it then, however allegations that VIMA Enterprises was a business owned, operated and managed by his wife formed part of each of the four charges alleging disgraceful or improper conduct against him. In my view, regardless of the Procurement Officer having obtained the required number of quotations then recommended the lowest bidder, the plaintiff should not have approved the purchase of supplies from his wife’s business. I think one can reasonably infer that the plaintiff was indirectly benefiting from such dealings thus implying disgraceful or improper conduct, and subsequently raising the issue of corruption. I do not wish to say anymore on this issue except, to reiterate that under the circumstances, I consider that the plaintiff’s termination was lawful and justified. It follows that he is not entitled to damages, and the question of reinstatement is consequently immaterial.

For the reasons I have alluded to, I order that the plaintiff’s claim be dismissed, and that the plaintiff pays the defendants’ costs, to be taxed, if not agreed upon.
_______________________________________________________________________
Lawyer for Plaintiff		:	Davids Lawyers
Lawyer for Defendants	:	Blake Dawson Waldron