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Mero v Lepaya [2023] PGNC 288; N10453 (23 June 2023)

N10453

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 17 OF 2023 (IECMS)

SAILAS MERO
First Plaintiff

AND
PETER ELVIS LEPAYA
Second Plaintiff

V
DAVID MANNING COMMISSIONER OF POLICE
First Defendant

AND
TAIS SANSAN SECRETARY PERSONAL MANAGEMENT
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 20^th & 23^rd June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Leave Application for Judicial Review – Police Officers – Resignation to Contest Election – Expression of Interest to Rejoin – Unsuccessful to Rejoin – Leave to Review Decision of Commissioner Not to Re engaged – No Arguable cause – No Locus Standi – Leave Refused – Cost follow the Event.

Cases Cited:

Kekedo v Burns Philp Ltd [1988-89] PNGLR 122
Rataba v Commissioner of Police [2010] PGSC 51; SC1014
Somare, Re [1981] PNGLR 265
State v Eluh [2016] PGSC 26; SC1479
Takori v Yagari [2007] PGSC 48; SC905
Wauwia v Inguba [2013] PGNC 61; N5232

Counsel:

G. Konjip, for Plaintiff
M. T. Kopi, for Defendant

RULING

23^rd June 2023

1. MIVIRI, J: This is the Ruling on the first and second plaintiff’s originating summons filed of the 2^nd March 2023 seeking leave for Judicial review pursuant to Order 16 Rule 3 (2) (b) of the National Court Rules to review the decision of the First Defendant dated the 11^th and 23^rd November 2022 respectively.
   
2. They must demonstrate on the required balance that they have locus Standi. They have an arguable cause. And have come without delay. It is common to both plaintiffs that they are no longer members of the Royal Papua New Guinea Constabulary having resigned individually to contest the 2022 National Elections, one in the Maprik Open seat in East Sepik Province. And the other in the Hela open seat Hela Province. Both were former employees of the Constabulary who rely on that fact to come back again into the Constabulary but have not been successful. And so are challenging and seeking leave to bring that cause of action against the Commissioner and the State.
   
3. The first plaintiff resigned on the 28^th September 2021 purposely to contest the 2022 National Election in the Maprik Open Seat in East Sepik Province. He is 50 years old from Sunuhu Village Maprik District East Sepik Province. He is married with nine (9) children. At the time of resignation, he held the rank of Senior Inspector of Police serving the police for 29 years. He applied for resignation which was granted by the Commissioner by letter dated the 10^th March 2022, annexure “SM1” to his affidavit. And separation formalities took place. And he nominated as a candidate for the Maprik Open Seat in East Sepik Province, annexure “SM2” copy of the receipt from the Electoral Commission accepting the nomination fee. I came 07^th place in the race for the Maprik Open Seat. On the 08^th August 2022, I wrote to the Commissioner annexure “SM4” seeking reinstatement to the police Force. That was replied to by the Commissioner annexure “SM5” refusing my expression to join. And he based his decision to on annexure “SM6” Public Service Circular Instruction No. 27 of 2021 issued by the Secretary for the Department of Personal Management that Public Servants who contested the 2022 National Elections will not be reinstated until after 5 years. And that is the position of the police confirmed by Acting Assistant Commissioner of Police Human Resources Samson Siguyaru.
   
4. The second plaintiff employed prior to his resignation in Hela as Provincial Administration Officer Hela Province resigned expressing that intention by letter dated 20^th September 2021, annexure “A” to his affidavit sworn of the 07^th February 2023 filed the 2^nd March 2023. He is 49 years old married with five children from Yongo Village, Magarima District, Hela Province. His intention to resign was approved by annexure “B” letter dated 10^th March 2022, under hand of First Assistant Secretary Police finance and Administration Jerry Pius. Separation formalities took place effecting the resignation and the plaintiff nominated as candidate to contest the Magarima Open Seat in Hela Province on the 19^th March 2022. Annexure “C” is copy of the receipt that was issued by the Electoral Commission accepting his nomination fee. And annexure “D” is copy of second plaintiff’s membership to PNG Country Party Inc. He contested the Magarima Open Seat and came 10^th in that race.
   
5. He wrote annexure “E” on the 19^th August 2022 to the Commissioner of Police to seek re engagement but was unsuccessful. On the 11^th November 2022 the Commissioner wrote to him annexure “F” refusing his intent to be re engaged. He advances the same grounds relied by the first plaintiff against the decision of the Commissioner not to re-engage their services back to the Police. Both say the Circular instruction No 21 from the Department of Personal Management was wrongly taken into account by the Commissioner in the decision that he made not to re-engage their services back into the Police.
   
6. This circular instruction dated the 21^st September 2021 is addressed to All National Departmental heads, heads of other Public Authorities, All Constitutional office holders, all Provincial Administrators, and all Public Servants. The subject is Proceedings for Public Officers wishing to contest the 2022 National General Election. Final Entitlements will be paid in accordance with the relevant General Order provisions. And normal recruitment, selection and appointment procedures will apply to positions vacated by aspiring candidates during the election period. Applications for re-entry into the Public Service shall be after five (5) years and only be considered and authorized by the Secretary for the Department of personal management and in the case of State Services and Public Authorities by their respective Agency heads in consultation with the Secretary, Department of Personal Management. This is from 3.1 to 4.1 one of the Circular Instruction.
   
7. And is very clear language that gives the Commissioner the authority to consider it in his discretion as to whether he engages or not the services of the plaintiffs. Primarily he is the authority who makes that decision whether to reengage the plaintiffs or not to. It is his prerogative and not the dictation of the Secretary Personal Management. And his taking account and referral of the plaintiffs to that circular instruction is not an error in the process. As both are not serving members of the Constabulary anymore. And cannot challenge as to how he makes his decision.
   
8. Both Plaintiffs argue that the police Force is a separate State service and the Public Service Instructions above do not apply to it. Because the members of the police Force are not public servants. They are covered by the Police Act. And the plaintiff has his Constitutional rights to vote and stand for public office which he exercised then. And he specifically resigned to exercise that right. Had there being no elections he would not have resigned as he did. The reasons of the Commissioner are so unreasonable and unconstitutional. He can reinstate ex members who resigned to contest the National Election 2022 in accordance with the provisions of the Police Act.
   
9. What is undisputed is that as the ultimate head of the Constabulary he has made an independent decision taking account of that circular in that decision not to reengage the services of both plaintiffs. It must be clear that the plaintiffs are no longer members of the Constabulary. They have of their own volition decided to forego their positions in the Constabulary, Sailas Mero here at the Police Headquarters Port Moresby, and Peter Elvis Lepaya in Hela Province as Provincial Administration Officer when he resigned. They decided to resign knowing fully well that they did not have these position that they held reserved for themselves, waiting upon the completion of the Election for them to return to. They were not on recreational leave to return to that position. They had relinquished all within of and accorded by both positions. They were applying a fresh, a new, but had their records of service. By themselves these did not accord them a right to the positions, and a must to be employed so that when the Commissioner refused to reemploy, they had a cause of action in law against. In law this is not the situation here.
   
10. They do not demonstrate locus standie within the meaning expounded in Somare, Re [1981] PNGLR 265. Given the discussion set out above they both do not have standing to bring this cause before the Court for leave for judicial review. They are not serving members who have been derailed no fault of theirs, or who the Courts have ordered reinstatement, Rataba v Commissioner of Police [2010] PGSC 51; SC1014 (26 February 2010). Or as in Wauwia v Inguba [2013] PGNC 61; N5232 (12 June 2013). Both do not have the same rights as serving members. They do not demonstrate that they have an arguable cause to be granted leave. They have not raised the balance to be accorded in their favour and must fail on all fours.
    
11. They do not depict the scene set out by Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 or State v Eluh [2016] PGSC 26; SC1479 (2 February 2016). The prerogative is of the Commissioner. He is not answerable to them for refusing to employ them after they have voluntarily and freely exercised the decision to resign from their positions and their jobs with the Royal Papua New Guinea Constabulary. It is not as if they have taken leave without pay to contest the elections and return after that leave without pay.
    
12. Their records of service will not add to sway re-entry into the Constabulary and the Commissioner his independent decision has not committed an arguable basis to allow leave in their favour. Time has moved and the positions are no longer there for them. This is a leave application that was made without any real basis in law at all. In saying this I am mindful that no litigant should be driven off the seat of Judgement summarily but proper regard to all to come to that decision: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007). The discretion must be properly exercised given. In my view there is no reason apparent or identifiable that there is leave in the application of both. Leave will not be accorded their pleas individually and severely. Rather their originating summons will be dismissed with costs to follow the event in favour of the defendants.
    
13. The formal orders of the Court are:
    
    • (i) Leave for Judicial review is refused forthwith.
      
    • (ii) Costs will follow the event in favour of the defendants forthwith.

Orders Accordingly.

__________________________________________________________________

Konjip & Associate Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for the Defendants