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Angi v Wagambie [2021] PGNC 151; N8878 (16 June 2021)

N8878

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 27 OF 2012


BETWEEN:
MARTIN ANGI
Plaintiff


AND:
ANTHONY WAGAMBIE THE POLICE COMMISSIONER
First Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Miviri J
2021: 06th & 16th June


PRACTICE & PROCEDURE – Originating Summons – Notice of Motion for Judicial Review – Affidavit in Support – Disciplinary Process – Police Force Act – Police Issued weapon missing – Disciplinary process Police Force Act not followed – Ultra Vires – Error in procedure – Materials relied sufficient – balance discharged – Judicial Review granted – Cost follow event.


Cases Cited:
Papua New Guinea Cases


Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Farapo v Commissioner of Police [1996] PNGLR 17

Aihi v The State (No 1)[1981] PNGLR 81

Wauwia v Inguba [2013] PGNC 61; N5232

Kolokolo v Commissioner for Police [2018] PGNC 338; N7475

Saboko v Commissioner of Police [2006] PGNC 40; N2975

Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797


Overseas Cases


Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.


Counsel:


P. Mawa, for Plaintiff
No appearance for Defendant


RULING

16th June, 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s substantive Notice of Motion of the 22nd March 2012. He seeks a review of the Police Commissioner’s decision dated the 22nd June 2011 which dismissed him from the Police Force, then later annulled the decision of dismissal and reinstated him with a demotion in rank from Sergeant to Senior Constable.
  2. He seeks by the notice of motion filed 22nd March 2012 certiorari to bring into court and quash the decision of the First Defendant made 22nd June 2011 to dismiss him from the Police Force then annulling the penalty of dismissal from the Royal Papua New Guinea Constabulary and substituting it with the penalty of demotion in rank from Sergeant to Senior Constable.
  3. Further an order in the nature of mandamus requiring the First Defendant to reinstate him to his substantive position of Sergeant.
  4. And an order in the nature of mandamus requiring the First Defendant to pay “back Pay” and other emoluments lost by being unlawfully dismissed from the date of dismissal to the date of reinstatement by the Court.
  5. Including costs of the proceedings with any other orders as discretion by the Court.
  6. The basis of this remedies sought are that contained in the Statement in support filed the 30th January 2012 and amended made on the 27th March 2012. Principally he contends that section 25 of the Police Act 1998 was not heeded. He contends that the first defendant acted ultra vires his powers by the section in failing to appoint a Disciplinary officer to investigate and report the matter to him for his consideration.
  7. Section 25, “IMPOSITION OF PENALTY WHERE CHARGE SUSTAINED.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2) The Commissioner after considering the report referred to Subsection (1), may, where–

(a) the disciplinary officer is of opinion that the charge has been sustained; and
(b) the Commissioner concurs with that opinion,

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26.

(3) Where–

(a) the disciplinary officer reports that in his opinion the charge has not been sustained; and
(b) after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained,

the Commissioner shall dismiss the charge.

(4) Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.

(5) Where the Commissioner imposes a penalty under Section 26(1), other than a penalty in terms of Paragraph (g) of that subsection, the Commissioner may, in addition to such penalty direct that the offending member complete a course of retraining in accordance with Section 26(2).

(6) A retraining course for the purposes of Section 26(2) shall comprise such course of training and instructions as the Commissioner determines, and may include an examination or examinations.

(7) Where, at the conclusion of such time as the Commissioner may allow, the offending member has satisfactorily completed the retraining course, and passed any examinations connected therewith–

(a) the penalty in the case of a fine, or forfeiture of pay, may, in the discretion of the Commissioner be remitted in whole or in part, and the proportion so remitted shall be repaid to the offending member; and
(b) any reduction in rank or salary may be reversed in whole or in part as from the date of satisfactory completion of the retraining course, and the passing of the examination.

  1. The section at the outset concludes that after investigation a disciplinary officer appointed in accordance with section 24 shall furnish a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended. The requirements of section 24 must be clearly read out because from it comes the footholds in law relevant to whether or not what comes out stays and holds water. That is whether or not there was a disciplinary officer appointed within the meaning of that section 24. DETERMINATION OF CHARGE. Reads;-

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be–

(a) a person other than the person who has charged the member; and
(b) of superior rank to the member charged.

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.

  1. This section is in effect giving effect to an independent investigation which is administered by the disciplinary officer he is given a complete picture of the allegation both for and against. The charges the reply to them by the member and what material has been gathered in the investigations. Any additional material must be accorded the member so that he is given chance to give his side of the story. With all these in hand the report is complete for the disciplinary officer to give to the Commissioner who shall consider it. If he accepts that from it that the member is guilty as recommended, he may also consider the penalty that is recommended by the disciplinary officer. He may accept that decision or may refer if he does not accept to a new disciplinary officer appointed. In similar fashion is as to whether or not the verdict is not made out.
  2. Here the only evidence for consideration is the affidavit of the plaintiff of the 27th January 2012 filed of the 30th January 2012. The defendants have not filed any evidence rebutting. It means the only evidence for consideration in the determination of this matter is that of the plaintiff. From this evidence the following are undisputed facts relevant and material to this proceeding. And they also comprise the Statement of Agreed Facts endorsed by both parties filed 23rd March 2012. The agreed facts are; Plaintiff signed for the release of the weapons, one of which is a special .38 revolver, and he gave it to Chief Sergeant Misso who

Left it in another vehicle in pursuit of the criminals who had robbed and drove away the police vehicle at Erima, NCD. Chief Sergeant Misso never returned that weapon to him after successful recovery of the stolen police vehicle at Moitaka.


  1. Senior Constable Andrew Abel, who was with Chief Sergeant Misso at that time in pursing the criminals gave a similar .38 special revolver to one policewoman Florence Wakon around the same period to keep for him and later came back to her to get it. The allegation against the plaintiff was that he was negligent and for failing to report the missing weapon as set out in the allegation. His penalty was dismissal by then Commissioner Gari Baki after an assessment of his response to the charges. It was overturned by Commissioner Anthony Wagambie reinstating him to a demoted rank of Senior Constable. No reasons were given here as to why reinstatement but to a rank lower.
  2. Up to the time of this allegation the Plaintiff had since June 1979 joined and had served the Police Force for 31 years making his way up to the rank of Sergeant with the National Fraud Squad when this allegation arose in June 2009. On the 28th August 2006, a police vehicle Toyota Kijang registered as BBI 499 allocated to the National Fraud Squad was held up by criminals at Erima. Responding to it the Director of National Fraud Squad Superintendent Mathew Damaru allocated two .38 Revolvers one to Chief Sergeant Misso and the other to Plaintiff with his group. Four days later the subject vehicle was recovered at the Moitaka Power station and McGregor Police Barracks. In or around 03rd January 2007 he returned the subject weapon .38 revolver to the Director of the Fraud Squad Superintendent Mathew Damaru. And in so doing that which was allocated to Chief Sergeant Misso had not been retrieved or returned.
  3. On the 16th July 2009, the Director of the National Fraud Squad recommended to Assistant Commissioner of Police Crimes, Raphael Huafolo for the plaintiff to be charged with two disciplinary charges pursuant to section 20 (1) (a) and section 20 (1) (c) of the Police Act. These were that:
  4. He responded by internal memo on the 07th July 2009 to the charges contending that he was innocent of the allegations. That the last person in possession of it was Chief Sergeant Misso though he had signed them out. That the latter was himself a Senior NCO and would return it. That there was no room for foul play.
  5. No appointment was made of a disciplinary officer to conduct the investigation on the charges and with the response from the Plaintiff to do disciplinary report to the Commissioner of Police. There is no evidence to this effect in the material primarily by the plaintiff.
  6. On the 25th June 2010, the Plaintiff was served with the Notice of Penalty signed by the first Defendant effectively dismissing him from the Constabulary. It was made without consideration of a disciplinary report. The plaintiff appealed against that decision requesting that the Commissioner reconsider his dismissal decision. A year lapsed and eventually on the 22nd June 2011 that decision was annulled of his dismissal. He was ordered to be reinstated but to the demoted rank of Senior Constable from his initial rank of Sergeant.
  7. The gloss of this evidence is that there was no disciplinary officer appointed within the terms of section 24 of the Act. Nor is there evidence of delegation in writing showing that indeed Superintendent Mathew Damaru was delegated as such within the meaning of section 17 of the Act. And there is no evidence further that he was appointed as disciplinary officer within the meaning of section 19 of the Act. There is no further evidence that copies of the reports that were to be considered in relation to the charges were furnished to the plaintiff. But the boiling point in this dispute is whether or not there was an appointed designated disciplinary officer in accordance with the provisions set out above, so that what was processed followed due process of discipline set out under the Act, therefore stood the tide of contention levelled here.
  8. Because judicial review is all about the process and procedure that was mastered to arrive at the decision: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Here sections 17, 19, 23, 24, 25 and 26 of the Police Act 1998 are the code of discipline that must be followed to the letter to arrive at justice dispensation of the disciplinary process so that the decision made stands without faulter. Because one is depended on the other, it is a system built to give effect to the Legislative scheme of things, rings in the chain to ensure justice fairness and equity to the member effected. One missing ring and the chain crumble to shreds.
  9. It is not about the substance at the end, here the guilty verdict and the penalty of dismissal that has now being annulled to demotion from Sergeant to Senior Constable against the Plaintiff. These all stem from whether or not there was a disciplinary officer appointed with the terms of the sections set out above. Here there is no evidence on the balance of preponderance against the contention by the Plaintiff. It is undisputed and uncontested that the First Defendant did not appoint a disciplinary officer to investigate the matter and to report to him. It was a mandatory procedure that stood out against the decision that followed. Because the purported recommendation for disciplinary Charges to be laid complied by Director Fraud and Anticorruption Directorate Superintendent Mathew Damaru addressed to QPM, DPS, Assistant Commissioner of Police Raphael Huafolo was not an investigation or disciplinary report within the meaning of section 24 of the Act. There was a serious and mandatory breach of the section and the requirement it foretold not given effect to by the first defendant.
  10. Because in itself the recommendation made on the 16th July 2009 by the Director of National Fraud and Anticorruption Directorate Superintendent Mathew Damaru for disciplinary charges to be laid against the Plaintiff did not constitute discharge of the requirements of section 24 of the Act. It was a failure that amounted to a serious and mandatory breach of procedure. What followed from it did not amount the totality that the plaintiff was dismissed by due process of law. And this court has voiced similar in Farapo v Commissioner of Police [1996] PNGLR 17.
  11. What was unlawful did not become cured by another unlawful act or a serious of unlawful applications of the law. It means for all intent and purposes the finding of guilt pertaining to both offences under firstly section 20 (1) (a), and section 20 (1) (c) of the Police Force Act, levelled against the plaintiff did not stand in law, because it simply did not come processed by due process under the Police Act, the appointment of a duly appointed disciplinary officer. It could not lead to penalties because it was never lawfully raised and pursued. It did not have a life of its own to sprout to other consequential sequences that rode on it. Consequently, there was no fairness in the way the Plaintiff was treated because the .38 revolver was in possession of one Chief Sergeant Misso and not the Plaintiff.
  12. It is arguable that section 24 was not pleaded as a separate and distinct ground of review by the plaintiff, but it cannot be ignored in the code of the disciplinary process set out under the Police Act 1998. It is integral to that process without which justice would not be attained for the litigant and it would defeat the legislative intent to read without it and to confine to what is pleaded. Because like Aihi v The State (No 1) [1981] PNGLR 81, there is unfettered discretion in the courts to tailor its remedial process to the circumstances posed individually by each case. So as to ensure that the primary rights as here of the plaintiff is protected and justice accorded in the interpretation. It would not be an error of law to interpret in this manner, as equity holds the hand of the law not without, and therefore given the facts of the case here, it is primary rights that are at stake if confined to strict interpretation.
  13. Because the facts establish that one year later after being charged with the serious disciplinary charges on the 25th June 2010 plaintiff was notified by the Commissioner of Police that he was dismissed from the Royal Papua New Guinea Constabulary for the loss of the .38 revolver again which he had denied. And on the 28th June 2010, he responded by an internal memo appealing against his dismissal the severity of the penalty. And a year later on 22nd of June 2011 the Commissioner of Police responded to the appeal advising that the penalty of dismissal was annulled and changed so that he was now demoted from the rank of Sergeant to Senior Constable at base rate.
  14. There were no reasons given for this stand taken by the Commissioner, nor was it clearer there as to whether or not, both Director of Fraud and Anticorruption Superintendent Mathew Damaru and Assistant Commissioner Crimes Raphael Huafolo were appointed disciplinary officers by the Commissioner of Police executing section 19 and 24 of the Police Act 1998. Coupled with there being no evidence of their appointment in writing as such, and their conduct of investigations as such, presentation of a disciplinary report to the Commissioner of Police for his consideration and decision, it was a case clear that procedures prescribed were not adhered to in the outcome against the plaintiff. There was no investigation by any other disciplinary officer appointed other than them. The aggregate was that there was no disciplinary process executed according to the terms of the Police Act sections 17, 19, 23, 24, 25 and 26 of the Police Act 1998. Therefore, what has come about is not there in law and cannot sustain as it has done to give the penalty as it has set out above: Wauwia v Inguba [2013] PGNC 61; N5232 (12 June 2013).
  15. Glossed another way there was no evidence to sustain the penalty that came out at the end including finding of guilty without evidence: Kolokolo v Commissioner for Police [2018] PGNC 338; N7475 (21 September 2018). The penalty was accorded without the plaintiff being heard and it was the most severe penalty prescribed by that section. And to do so was ultra vires and could not stand to seal the decision. Coupled with there being no reason for the annulling and demotion, it did not stand but amounted to serious breach of procedure and so ultra vires. The standard of the evidence that led to the penalty was analogous to Saboko v Commissioner of Police [2006] PGNC 40; N2975 (21 February 2006). He was disciplinarily charged on evidence in criminal trial where he was acquitted. It was clearly unreasonable within the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 sense, the burden of proof in a criminal trial did not sustain, there was no reason in evidence to again charge the applicant for the offence disciplinarily. Here it did not par that the applicant be demoted as there was no reason in law to substantiate the decision taken of a policeman, who had served out 31 years without any mark to his record of service. It was a breach of procedure that did not stand the decision taken, including natural justice under section 59 of the Constitution which makes the annulling and demotion decision without basis. In particular on what basis the Commissioner reached that decision so that the plaintiff is appraised of what basis he has succumbed to that penalty: Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402 (2 May 2003).
  16. This in total spells that the disciplinary process is unfair, unlawful, unjust and would not stand given all set out above. Judicial review lies in favour of the plaintiff as pleaded. Because the effect of the material relied set out above discharges the balance of probabilities in his favour on all the grounds pleaded. The missing weapon .38 special revolver was last in the possession of Chief Sergeant Misso and Statement of David Tololo states clearly, “While in the Mazda I saw one of our Police issued .38 revolver placed between the driver’s seat.” This is the same evidence that is given by Detective Senior Constable Premenga Patrick that, “We then contacted the office immediately and within 30 minutes other members from the office arrived in two other vehicles. At that time our then Supervisor Chief Sergeant Francis Misso came in our Mazda Bravo driven by Det. Senior Constable Andrew Abel while other members came in another Toyota Kijang with some of his members from Fraud Unit. We then.... While in the Mazda I saw one of our Police issued .38 revolver placed between the drivers seat.”
  17. And then there is the evidence of Policewoman Constable Wakon Florence, “ I recall something in early 2007 on a Friday afternoon Det. S/Constable Andrew Abel gave me a .38 revolver similar to our Police issued ones for safe keeping at Gordons Policewomen’s single barracks. Without questioning... Then on Sunday night of that same weekend S/Constable Abel came back with a man from the highlands in a flashy vehicle with tinted glasses and asked for his firearm. I then got it from my room and returned it to him and he gave me K 50.00 for looking after his firearm.”
  18. This evidence is contrary to the evidence of denial by Chief Sergeant Francis Misso of pursuing and being involved in the search. What is evident is that the disciplinary offences did not stand in law by the evidence and the procedure applied to arrive at against the plaintiff on all the grounds pleaded. There is no decision open apparent and identifiable in law other than to grant judicial review as pleaded. It follows that the remedies pleaded pursuant follow in favour of the plaintiff. These include all Salary and emoluments equivalent to the position of Sergeant that he held on the 25th June 2010 up to the date of this judgement and orders: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005).
  19. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Mawa Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for First Defendants


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