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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO.126 OF 2017
BETWEEN:
813378 PRIVATE ENOCH WAMBU
Appellant
AND:
LT. COLONEL VINCE GABINA,
COMMANDING OFFICER, 2 PIR
First Respondent
AND:
LT. COLONEL LUKE SEVERE,
DIRECTOR, PERSONNEL AND ADMINISTRATION
Second Respondent
AND:
LT. COLONEL THOMAS PONJOM,
DIRECTOR, OTHER RANKS MANAGEMENT
Third Respondent
AND:
COLONEL TONY OAWA,
CHIEF OF PERSONNEL
Fourth Respondent
AND:
BRIGADIER GENERAL GILBERT TOROPO,
COMMANDER OF THE PAPUA NEW GUINEA DEFENCE FORCE
Fifth Respondent
Waigani: David, J
2021: 5th July & 8th October
DEFENCE FORCE PROCEEDINGS - appeal against decision of appropriate authority to discharge appellant from Defence Force for being AWOL/IA – appellant held rank of private – civil schooling procedures not met - appeal dismissed - Defence Act, s33 – Code of Military Discipline, sC10 - Defence (Period of Service) Regulation, s11 – Papua New Guinea Manual of Personnel Administration, Chapters 88 and 115 – Interpretation Act, s12.
Cases Cited
Leo Nuia v Benias Sabumei, Minister for Defence [1992] PNGLR 90
Raphael Pius v Commodore Peter Ilau (2009) N3833
Raphael Pius v Commodore Peter Ilau (2011) SC1115
Anthony Corema v Thomas Ponjom (2019) N7996
Counsel:
Junior Fish Unua, for the Appellant
Herman. Kromnong, for the Respondents
JUDGMENT
8th October, 2021
BRIEF BACKGROUND FACTS
RESPONDENTS’ POSITION
GROUND OF APPEAL
RELIEF SOUGHT
5. The order that the appellant seeks in lieu of the decision appealed is that he be reinstated back to his substantive position in
the Regular Force of the Defence Force with 2RPIR.
LEGAL ISSUES FOR DETERMINATION
6. The main legal issues that arise from this appeal for my determination are:
DECISION TOO HARSH
Submissions
7. Mr. Unua of counsel for the appellant contends that the decision to dismiss and discharge the appellant from the Defence Force was “too harsh” in the circumstances as:
8. Mr. Kromnong for the respondents submits that the decision to dismiss and discharge the appellant from the Defence Force was appropriate and not “too harsh” in the circumstances as:
Consideration
9. The Defence Act, by virtue of Section 33, provides alternative procedures (as opposed to being complementary) for discharging a member from the Defence Force, one is under the Code of Military Discipline (the Code) which is set out in the Schedule to the Defence Act and the other is under the Defence (Period of Service) Regulation (Period of Service Regulation) promulgated under the Defence Act: Leo Nuia v xBenias Sabumei, Minister for Defence [1992] PNGLR 90; Raphael Pius v Commodore Peter Ilau (2009) N3833; and Raphael Pius v Commodore Peter Ilau (2011) SC1115.
10. It is not disputed that the appellant was discharged under the Period of Service Regulation.
11. Section 11 of the Period of Service Regulation deals with the termination of the service of a member of the Defence Force, other than an officer, before the end of his period of service. The Section states as follows:
“11. Termination, etc., of service of member.
(1) For the purposes of this section, "appropriate authority" means—
(a) in the case of a Sergeant, Warrant Officer or Chief Warrant Officer—the Chief of Personnel acting after consultation with the Commander of the Defence Force; and
(b) in any other case—the Chief of Personnel.
(2) A member of the Defence Force, other than an officer, may before the end of his period of service, be discharged by the appropriate authority—
(a) on reaching retirement age; or
(b) on completion of his current period of engagement; or
(c) where a medical practitioner who is a member of the Defence Force certifies that he is unfit to discharge, or incapable of discharging his duties; or
(d) where he has by written notice addressed to the appropriate authority, requested his discharge; or
(e) where the appropriate authority is satisfied that—
(i) the member of the Defence Force is for any reason not suitable for service in the Defence Force; or
(ii) the retention of the member of the Defence Force is not in the best interests of the Defence Force; or
(iii) the member of the Defence Force gave false information in connexion with his enlistment; or
(iv) an offence committed by the member of the Defence Force for which he has been convicted is such as to render him unsuitable for service in the Defence Force.”
12. There is no fetter on what is considered by the appropriate authority for it to be satisfied that the retention of a member of the Defence Force is not in the interests of the Defence Force: Raphael Pius v Commodore Peter Ilau (2011) SC1115.
13. At the material time, the appellant was a Private so the appropriate authority empowered to discharge him from the Defence Force under any of the grounds specified under Section 11(2) was the Chief of Personnel.
14. There is no challenge to the power of the appropriate authority who discharged the appellant from the Defence Force given no specific ground of appeal regarding that is pleaded in the Notice of Appeal. However, judging from documentation contained in the Appeal Book and submissions of parties, there is some confusion here as to who actually was the appropriate authority who made the Discharge Order. I note that the introductory part of the Notice of Appeal refers to the Director of Other Ranks Management, HQ, Defence Force making the Discharge Order, but the Entry of Appeal refers to the Third Respondent, Lt. Col. Emmanuel Todick as Director of Other Ranks Management and Fourth Respondent, Col. Tony Oawa as Chief of Personnel making the Discharge Order. In the written submissions, the appellant contends that the appeal is from the decision of the Fifth Respondent, Brigadier General Gilbert Toropo contrary to those named in the Notice of Appeal and Entry of Appeal. In my view, while the Notice of Appeal is the document to look at to identify the appropriate authority whose decision has been appealed as it is the originating process, given the confusion, the benefit of the doubt should be given to the respondents because it is the appellant who is challenging the regularity of the Discharge Order who bears the onus of proof. The lack of clear and cogent evidence in the Appeal Book to clarify who actually made the Discharge Order adds to the confusion. Hence, as the Chief of Personnel is the appropriate authority to discharge a member of the Defence Force, other than an officer, and the appellant was a Private in this case, under s11(2) of the Period of Service Regulation, the presumption of regularity sometimes described by the Latin maxim omnia praesumuntur rite et solemniter esse acta would point to the Fourth Respondent, Tony Oawa, Chief of Personnel as being the appropriate authority who made the Discharge Order.
15. The requirement to act fairly depends on the nature of the allegation against a member of the Defence Force and whether the member is available to be given a right to be heard: Raphael Pius v Commodore Peter Ilau (2009) N3833; and Raphael Pius v Commodore Peter Ilau (2011) SC1115.
16. If a member has abandoned his or her post and is still absent when it is proposed to discharge him, the principles of procedural fairness do not require that he be given a right to be heard; Raphael Pius v Commodore Peter Ilau (2009) N3833; and Raphael Pius v Commodore Peter Ilau (2011) SC1115.
17. It is incumbent on the appellant to prove that in fact he was not absent without leave (by proving that he was not absent or that he had leave to be absent): Raphael Pius v Commodore Peter Ilau (2009) N3833; and Raphael Pius v Commodore Peter Ilau (2011) SC1115.
18. Chapter 115 of the Papua New Guinea Defence Force Manual of Personnel Administration (the Manual of Personnel Administration) sets out the procedure for dealing with members of the Defence Force who absent themselves without leave. Chapter 115.11 to 115.19 deal with actions taken and the status of a member of the Defence Force when the absence of a member without leave exceeds twenty-one days. Chapter 115.11 states:
“When a member is alleged to have been absent for 21 days, the members personal documents, other than his pay card are to be forwarded under cover of a POR containing the keywords ‘AWOL’ and ‘Unit’ – illegal Absentee List to the PNG Defence Force Records Office. The member is regarded as being an illegal absentee on and from the 22nd day of absence.”
19. Being AWOL/IA is no light matter and can lead to serious consequences.
20. The appellant is from Kanganamun village, Wosera Gawi District in the East Sepik Province. He was born on 16 June 1989 at the Boram General Hospital, Wewak. He completed Grade 10 in 2010 at the Bamesaka High School.
21. The appellant was enlisted in the Regular Force of the Defence Force on or about 1 February 2012 initially as a recruit and then as Private. He underwent military training at the Goldie River Training Depot and passed out on or about 8 June 2012. He was granted a permanent commission for six years. He was posted to the Band Platoon of 2RPIR Moem Barracks, Wewak after passing out.
22. By a letter from Warrant Officer, Samson Bilbil, Band Master of 2RPIR, Moem Barracks addressed “To Whom it May Concern” dated 13 August 2012, he recommended that the appellant was a good candidate to take up further studies (13AB).
23. By a minute entitled “Request for Civil School” dated 24 September 2012, the appellant wrote to OC, Support Company seeking approval to undertake further studies to upgrade his level of education to Grade 12 and beyond (14AB). On or about 20 January 2014, by hand-written notation on the minute, the A/OC Support Company, among other things, requested the appellant to re-submit his request owing to his documents being outdated (14AB).
24. By an undated letter from Bamesaka Business Secondary School, Wewak to the appellant, he was advised of his acceptance to undertake Grade 11 studies at the school in the 2014 academic year (16AB).
25. By a minute entitled “Request for Civil School” dated 21 January 2014, the appellant wrote to OC, Support Company seeking approval to undertake further studies (17AB). In the minute, he said he would; meet his own school fees, maintain his duties after hours and during weekends; perform Battalion Bugle calls at 05:30 pm, 10:00 pm and 05:30 am; maintain cleanliness inside and outside Barracks lines; and he would perform any other duties during school hours if they did not clash with times to attend tests and examinations. On or about 24 January 2014, by hand-written notation on the minute, the A/OC Support Company approved the appellant’s request (17AB).
26. On 15 June 2014, a signal, Pers No.0109 entitled AWOL/IA – Pte Wambu E for the appellant being AWOL/IA between 5 May 2014 and 10 June 2014 was sent by the appellant’s parent unit, 2RPIR to COMPNGFOR, Defence Force Records Office and Cash Office, Murray Barracks (21AB). In the signal, it was reported, among others, that:
27. In the signal, it was requested that the appellant’s pay be ceased upon receipt of the signal.
28. On 1 September 2014, a discharge order No.45/14, Records No.00528 was issued by the appropriate authority discharging the appellant from the Defence Force with effect from 9 July 2014 (43AB), the appropriate authority having been satisfied that the appellant’s retention in the Defence Force was not in the interests of the Defence Force.
29. Chapter 88 (88.1 to 88.24) of the Manual of Personnel Administration deals with Civil Schooling. The aim of the Civil Schooling Scheme (the Scheme) is set out at Chapter 88.1 and it is to provide for the training and education of members of the Defence Force and of the Department of Defence by use of courses available through civilian training and education agencies.
30. Chapter 88.2 to 88.10 relevantly state:
“88.2 Training at public expense under the Civil Schooling Scheme is restricted to those courses and subjects which are appropriate to the member’s future employment within the PNG Defence Force. Approval may be granted for courses conducted on a part-time or a full-time basis, by attendance or by correspondence, and in working hours or in a member’s own time.
88.3 The Civil School Scheme is not designed to meet personal requirements for educational and vocational advancement. Fulfillment of these needs is provided by the Vocational and Educational Training Scheme, the details of which are specified in Chapter 101.
88.4 The Training Commander is to distribute to all Branch Heads, Directors and units by 30 June each year, a Catalogue of Civilian Courses which will detail those courses which will be available through the civilian education and training agencies in the following academic year.
88.5 All Directorates and units are to submit through their respective Branch Heads, requests for allocation of vacancies for civil schooling courses for the following academic year. All request, endorsed by branch Head approval, must reach the Training Commander by 31 July each year.
88.6 The Training Commander in conjunction with the Directorate of Manpower is to prepare a Schedule of Approved Course by 31 August. The Schedule of Approved Courses is to indicate the of vacancies allocated to each Branch, for each of the course listed and is to be approved by the Chief of Personnel.
88.7 Civil Schooling/VETS nominations PR 20s are to be completed by branch or unit nominees in triplicate and are to be forwarded to the directorate of Training by 30 September each year. Applications are to be forwarded through Branch Heads who are to indicate the order of priority for nominees. It is anticipated that the number applications will exceed the number approved vacancies in order to provide a pool of reserves that may be allocated the vacancies if the high priority nominees are subsequently prevented from attending their approved course.
88.8 A Schedule of Civil Schooling indicating the names and regimental particulars of personnel approved to attend civil schooling course is to be published by the Training Commander by 31 October year.
88.9 Joining instructions for each of the approved courses is to be raised by the Training Commander four weeks prior to the commencement of the course.
88.10 For courses that become available through civilian agencies after promulgation of the catalogue of Civilian Courses, applications may be in triplicate on the Civil Schooling/VETS Nomination PT 20. Such applications are to be submitted through the relevant branch head and are to reach the Training Commander no later than six weeks before the commencement of the course. Out of session approval will generally be granted only for course which were not known to be available at the time of promulgation of the Catalogue of Civilian Courses, or which are requested to meet the employment requirements for specific PNG Defence Force personnel in need of special training.”
31. As can be gleaned from Chapter 88.2, training at public expense under the Scheme is restricted to those courses and subjects which are appropriate to the member’s future employment within the Defence Force.
32. In addition, Chapter 88.3 states that the Scheme is not designed to meet personal requirements for educational and vocational advancement and the fulfilment of these needs can be accessed under the Vocational and Educational Training Scheme covered under Chapter 101 of the Manual of Personnel Administration.
33. Applications and approvals for Civil Schooling are processed pursuant to Chapter 88.4 to 88.9 and fall within the oversight of the Training Commander working in collaboration with the Director of Manpower and Chief of Personnel. The Schedule of Approved Courses prepared by the Training Commander in conjunction with the Director of Manpower requires the approval of the Chief of Personnel.
34. Under Chapter 88.12, the Defence Force meets all compulsory fees including tuition fees, student registration fees, accommodation fees and other fees that are declared by the education or training agency to be compulsory and non-refundable.
35. Clearly, the appellant’s application or request for Civil Schooling did not meet the requirements of Chapter 88. His request for Civil Schooling was for his personal educational advancement at an educational institution and course he himself chose contrary to Chapter 88.3 and he paid his own tuition fees contrary to Chapter 88.12. The A/OC, Support Company had no authority to give Civil Schooling approval.
36. There is no evidence in the Appeal Book to suggest that the appellant availed himself of the Vocational and Educational Training Scheme under Chapter 101 of the Manual of Personnel Administration.
37. The purported approval that the appellant got from A/OC Support Company fell way short of meeting the requirements under Chapter 88. Consequently, the appellant’s absence from military duty or post was without prior authorisation.
38. There is evidence that prior to the transmission of the AWOL/IA signal on 15 June 2014, the appellant was called to the office on numerous occasions and spoken to by his superiors about withdrawing from studies as he did not meet proper procedures for Civil Schooling, but he chose to ignore them and continued with his studies. In that regard, I concur with the respondents’ submission that the appellant, by his own conduct, had brought his dismissal and discharge upon himself.
39. There is no clear and cogent evidence in the Appel Book to demonstrate that the appellant did not abandon his military duty or post and was present at the Moem Barracks as he had proposed in his Request for Civil School dated 21 January 2014.
40. I am satisfied that the appellant abandoned his military duty or post and went AWOL/IA between 5 May 2014 and 10 June 2014. His absence exceeded twenty-one days so he was regarded as an illegal absentee under Chapter 115.11 of the Manual of Personnel Administration.
41. I am also satisfied on the evidence available in the Appeal Book that the requirement to act fairly was accorded to the appellant by his superiors. As alluded to earlier, he chose not to listen to his superiors.
42. Interestingly, by a minute entitled “Surrender Request” dated 31 August 2015, the appellant wrote to the IO, 2RPIR BHQ requesting to surrender and report back to duty stating that he had been absent while pursuing his own educational advancement: 24AB. This, to my mind, is a clear admission or concession that the appellant had been AWOL/IA as alleged.
43. A closer examination of the sole ground of appeal seems to suggest that the appellant’s appeal is actually against severity of punishment only which the appellant states is “too harsh”. To succeed in an appeal against severity of punishment, the appellant has to demonstrate that the punishment is manifestly excessive, for example, the appropriate authority misapplied the law on punishment under the Defence Act and or the Period of Service Regulation, clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence before him and therefore fell into error.
44. In Anthony Corema v Thomas Ponjom (2019) N7996, the plaintiff who was a member of the Defence Force other than an officer, was dismissed from the Defence Force for being AWOL for a period of two months and two weeks. His application for judicial review was unsuccessful.
45. In the present case, the appellant was AWOL/IA in excess of one month and as I have pointed out above, he was regarded as an illegal absentee. In the circumstances, the appellant has failed to demonstrate to the Court that the appropriate authority committed an error of law and or fact in discharging him from the Defence Force by way of the Discharge Order for being AWOL/IA between 5 May 2014 and 10 June 2014 which was “too harsh” in the circumstances.
46. Accordingly, the sole ground of appeal is dismissed.
47. Given this, it is now not necessary to consider submissions of counsel on the remaining main issue.
OTHER REMARKS
48. The parties did not raise any issue about the competency or otherwise of this appeal, but I will make some observations in passing.
49. The Period of Service Regulation does not have a review and appeal provision similar to Section C10 of the Code which states as follows:
“C10. Review and appeal.
(1) Except as provided in this section, no appeal lies to a court against a decision in any disciplinary proceedings.
(2) In disciplinary proceedings against a member of the Defence Force who is on operational service, no writ or order of, or of the nature of, a prerogative writ shall be made in respect of the proceedings, but if any such proceedings are improperly or wrongly conducted or decided the National Court, in accordance with the Rules of Court of the Supreme Court, may order the State to pay such amount as the Court thinks proper to any aggrieved person by way of compensation.
(3) Where a fine exceeding two days' pay or a punishment that is more severe than confinement to barracks is imposed, otherwise than by the Chief of Defence Force, on a member of the Defence Force in any disciplinary proceedings (other than proceedings under this section), the member may appeal, as prescribed, to a disciplinary officer next senior to the disciplinary officer who made the decision.
(4) An appeal lies, as prescribed, to the National Court constituted by the Defence Force Judge—
(a) in any case where the Chief of Defence Force imposes or confirms a penalty of dismissal or reduction in rank; and
(b) in any case where a punishment of detention in excess of 42 days is imposed.
(5) Section C9 applies to and in relation to an appeal under Subsection (3) or (4).
(6) On an appeal under Subsection (3) or (4), the appellate authority may—
(a) dismiss the appeal in whole or in part; or
(b) allow the appeal in whole or in part; or
(c) substitute for the decision any decision (including a decision as to punishment) that it could have given had the proceedings been taken before it in the first instance.
(7) For the purposes of Subsection (6)(c), the National Court has the same jurisdiction as the Chief of Defence Force under Section C8.
(8) The Chief of Defence Force may, of his own motion or at the request of any person affected by the decision, review a decision in any disciplinary proceedings (other than proceedings under Subsection (4)), and if he thinks it proper to do so may—
(a) disallow any finding of guilt; or
(b) impose any punishment less than that imposed by the decision; or
(c) order a further investigation into the matter of the decision,
and may make any other order that he thinks necessary to do justice in the matter, and for the purposes of a review or a further investigation may suspend the carrying out, or the continuance, of any punishment imposed.”
50. In the absence of a similar provision, this could mean that no appeal lies to the Court constituted by the Defence Force Judge against termination and discharge of a member of the Defence Force under s11of the Period of Service Regulation. The contrary argument would be that since there is no express prohibition, an appeal lies to a court against a decision of an appropriate authority to terminate and discharge a member of the Defence Force from the Defence Force under the Period of Service Regulation. Be that as it may, this appeal was filed, rightly or wrongly.
51. While an appeal lies under Section C10 of the Code, it does not prescribe a time limit within which to lodge an appeal to the National Court constituted by the Defence Force Judge. Nothing can be gained from that on the subject with regard to this appeal.
52. However, the appeal ought to have been lodged with all convenient speed. In that regard, s12 of the Interpretation Act is relevant and it states as follows:
“12. Provision where no time prescribed.
Where no time is prescribed or allowed within which an act is required or permitted by a statutory provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.” (my emphasis)
53. The Supreme Court in Acting Public Prosecutor v Uname Aumane and Others [1980] PNGLR 510 stated that the phrase “with all convenient speed” depends on all the circumstances of a particular case.
54 This appeal was filed on 29 November 2017 challenging the Discharge Order which was made on 1 September 2014. That was more than three years and two months after the Discharge Order was made. Even after a letter from the Chief of Personnel, Col. J. Rakatani to the appellant dated 10 October 2016, advising that the Discharge Order was in order, no appeal to challenge the Discharge Order was filed by the appellant until over a year later: 22-23AB. The circumstances of the present case clearly demonstrate that the appellant failed to act with all convenient speed.
55. In the circumstances, I think the filing of this appeal more than three years and two months after the making of the Discharge Order by the appropriate authority amounted to an abuse of the process of the Court.
ORDER
56. The formal orders of the Court are:
_______________________________________________________________
Public Solicitor: Lawyers for the Appellant
In-house lawyers, PNGDF: Lawyers for the Respondents
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