Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Ambuen v Huafolo [2023] PGNC 455; N10602 (5 December 2023)

N10602

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 27 OF 2023 (IECMS)

JOEL AMBUEN
Plaintiff

V
RAPHAEL R. HUAFOLO, DPS. QPM, IN HIS CAPACITY AS DEPUTY COMMISSIONER OF POLICE CHIEF OF ADMINISTRATION
First Defendant

And
GARI L. BAKI, DPS, QPM, CStJ, IN HIS CAPACITY AS THE POLICE COMMISSIONER
Second Defendant

And
ROYAL PAPUA NEW GUINEA CONSTABULARY
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2023: 19^th October, 5^th December

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Application for Leave for Judicial Review Order 16 Rule 3 NCR– Probationary Constable – Helping to Apprehend Betel Nut Freighting Vehicle – Given Betel Nut Bags Rewarding – Stealing Whilst a Probationary Police Constable – Appointment of Disciplinary Officer – Discretion of Commissioner of Police – Process of Law Exerted Followed – Delay – Exhaustion of Internal Process – Materials Insufficient – Balance Not Discharged – Leave Refused – Cost follow event.

Cases Cited:

Geno v The Independent State of Papua New Guinea [1993] PNGLR 22
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:

J. Bibilo, for Plaintiff
Z. Rekeken, for Defendants

RULING

05^th December 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s originating summons dated the 28^th March 2023, pursuant to Order 16 Rule 3 (1) (2) of the National Court Rules and section 155 (4) of the Constitution seeking: -
   
   • (i) Leave to seek Judicial review of the decision of the Second Defendant, through the instrument of delegation signed on the 14^th April 2016 and dated 12^th September 2016 authorizing Benjamin Turi to be both the Disciplinary and Charging Officer in the Plaintiff’s case.
     
   • (ii) Leave be granted pursuant to Order 16 Rule 3 (1) and (2) of the National Court Rules and section 155 (4) of the Constitution for the Plaintiff to seek judicial review of the decision of the First Defendant made on the 29^th August 2017 in dismissing the Plaintiff from the Royal Papua New Guinea Constabulary (RPNGC)
     
   • (iii) Costs of the proceedings to be paid by the Defendants, after taxed, if not agreed and
     
   • (iv) Any other orders this Honourable Court deems fit.
     
2. Apart from the Statement pursuant to Order 16 Rule 3 (2) (a) including notice of the same upon the Secretary for Justice, the plaintiff relies on his own affidavit filed of the 04^th April 2023. He has sworn it as of the 28^th March 2023. Relevantly he was a probationary constable on the 28^th January 2015. And was attached to the NCDC Public Safety Division on duty on Tuesday 2^nd August 2016 from 11.00pm to the 7.00am shift. At the 9 mile round about he saw a NCDC Enforcement Unit vehicle bearing registration number ZNC 366 pursing a Toyota Blue Landcruiser ten-seater on high speed. The plaintiff together with other shift members assisted and pursued that vehicle eventually apprehending it, and detaining it with the betel nut that was on board it. Which were loaded and taken to the tarpot for storage there as exhibits to that action in law. Out of all the betel nut bags taken eleven (11) bags with mustard were given to the plaintiff and his members.
   
3. The plaintiff received a minute on the 09^th August 2016 from the Hohola Police Station Commander containing allegations of Stealing against him and his shift members on duty on the 02^nd August 2016. He responded to it on the 10^th August 2016 denying it. On the 12^th September 2016 the second defendant appointed Metropolitan Superintendent Benjamin Turi as the disciplinary Officer. On the 30^th September 2016, Plaintiff was served two serious disciplinary Charges of the 02^nd September 2016. On 29^th August 2017 a Notice of Penalty (Notice of Guilt for serious Disciplinary Offence) was served the Plaintiff dismissing him from the Royal Papua New Guinea Constabulary. On the 15^th June 2021 the Plaintiff officially wrote to the office of the Commissioner of Police seeking review of his dismissal from the Police Force. In a letter dated 10^th March 2023 the Police Commissioner in response to the Plaintiffs letter sustained the dismissal from the Force against the Plaintiff. Because at the time of the misconduct the plaintiff was a probationary Constable not a fully-fledged member of the Police Force.
   
4. This is a process that was administered under the Police Act, section 23, 24, and 25 have been heeded coming from his facts pleaded. Appointment of the disciplinary officer was made by the Commissioner pursuant to section 19 of the Police Act. No doubt it was to determine a disciplinary offence within section 20 of that Act. It means a process of law was administered to come out with the penalty of dismissal of the plaintiff applicant. Charges were laid as evidenced by the facts set out above. Which were processed duly on an allegation of a disciplinary offence committed in 02^nd August 2016 sustaining his dismissal 10^th March 2023. There is no arguable basis in law demonstrated by the Plaintiff: Geno v The Independent State of Papua New Guinea [1993] PNGLR 22.
   
5. Internal Process within the confines of the Police Act has been followed to come out with the eventual, his dismissal from police. Judicial review abides with internal process and does not allow circumventing: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). There is no strong arguable basis to uplift the originating summons to a hearing. Leave is not in order as applied because he was dismissed following due adherence to procedure under the Police Act. He does not discharge that the matter is arguable per se. He was a probationary constable within the meaning of section 43 and has breached in serious terms his probationary period. That is evident in the way he has been dismissed from the Police Force.
   
6. He may have standing but there is no arguable case demonstrated. It is an action that arose in 2016 this is now 2023 going on to 2024, almost 5 years in bringing this matter. And Judicial review is time driven by Order 16 Rule 4 of the NCR. He has slept over in pursuing it. He has chosen the destiny of his cause of action. It will remain where it is refused with costs following the event.
   
7. The formal orders of the Court are:
   
   • (i) Leave for Judicial review is refused.
     
   • (ii) Costs will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General: Lawyers for First Defendants