N3506

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 437 OF 2001

BETWEEN

JOHN KORUL
Applicant

AND

SIMON KAUBA
PPC - SIMBU PROVINCE
First Respondent

AND

TONY WAGAMBIE
ACP - HIGHLANDS COMMAND
Second Respondent

AND

JOHN WAKON
COMMISSIONER OF POLICE
Third Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Kundiawa: Makail, AJ
2008: 18 April
: 28 October

ADMINISTRATIVE LAW & JUDICIAL REVIEW - Application for judicial review - Decision to transfer applicant - Disobedience of order to transfer - Subsequent decisions to suspend without pay and dismissal of applicant - Arising from disobedience of order to transfer - Grounds for judicial review - Want of authority - Authority to transfer vest in Commissioner of Police - Vesting of authority on members of Police Force - Delegation of authority - Harsh and oppressive - Bias - Ulterior motive - Grounds of transfer of members discussed - Disciplinary process must not be interrupted or frustrated - Police Act 1998 - sections 16,17,18-34 & 48.

ORDERS - Application for judicial review upheld - Orders for certiorari and declarations granted - Quashing of decision to transfer applicant - Subsequent decisions to suspend without pay and dismissal null and void - Constitution - Section 155(4) - National Court Rules - Order 16, rule 1 (1)&(2). 

Cases cited:

Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122

Legislations:

Constitution of Papua New Guinea
Police Act 1998
National Court Rules

Counsel:

Mr B Koningi, for the Applicant
No appearances for the Respondents.

JUDGMENT

28 October, 2008

1. MAKAIL AJ: This case has a long and sad history as we shall see from the background facts I will set out below shortly. But first, by an Originating Summons filed on 17 July 2001, the Applicant applies for judicial review. He seeks first to review the decision of the First Respondent of 12 December 2000 to transfer him from Kundiawa Police Station to Tari Police Station. Secondly, he seeks to review the decision of the First Respondent to suspend him from duties without pay on 05th February 2001 and 4 May 2001 and finally to review the decision of the Third Respondent of 3 October 2003 to dismiss him from the Police Force. 

2. The decisions to suspend and ultimately dismiss the Applicant from the Police Force followed the Applicant’s refusal to comply with a decision or order to transfer to Tari Police Station after he was found guilty after being charged with four serious disciplinary offences. 

EVIDENCE

1.	In support of the application, the Applicant relies on the following Affidavits:

(a)	His Affidavit sworn on 17 July 2001 and filed on 19 July 2001; and 

(b)	His other Affidavit sworn on 27 November 2006 and filed on 27 December 2006.

2.	The Respondents have not filed any Affidavits in reply to the Affidavits of the Applicant.

UNDISPUTED FACTS

3. Thus, much of the evidence of the Applicant remains undisputed and from the Affidavits of the Applicant, the following facts can be deduced; the Applicant is a former member of the Police Force holding the rank of Sergeant and was the Officer in Charge - Traffic Division in Kundiawa at the time of his dismissal from the Police Force. The First Respondent is the Provincial Police Commander of Simbu Province at the relevant time and the instigator of the Applicant’s dismissal from the Police Force. 

4. Prior to his appointment as Officer in Charge - Traffic Division, he was the Officer in Charge - Highway Patrol and also based in Kundiawa. As part of the Applicant’s duty, the Applicant and his members are required to enforce a liquor ban in the Simbu Province. In September 1999, the Applicant and his members arrested and charged a group of people attempting to smuggle liquor into the province. The Applicant and his members confiscated 204 crates of over proof dark rum in a containerized highway truck. The Applicant was the investigating and arresting officer and arrested and charged this group of people. The District Court found them guilty and convicted them and also ordered that the 204 crates of rum be forfeited to the State. This group of people appealed to the National Court and the National Court dismissed their appeal.

5. After the National Court dismissed the appeal, the First Respondent took control of the 204 crates of rum and directed other policemen to sell them. The policemen sold the 204 crates of rum to a company operating in Goroka named Moi Trading Limited. Moi Trading Limited paid a cheque of K24,000.00 and was delivered to the First Respondent. The First Respondent received the cheque but did not forward it to the Internal Revenue Commission. It is not known what became of the cheque of K24,000.00.

6. The Applicant as the officer responsible for the entire case and successful prosecution of the offenders was anxious to know what became of the cheque of K24,000.00 and make inquiries and even raised the issue at a police parade in Kundiawa. He did not receive any good response as to the whereabouts of the cheque of K24,000.00 and raised the issue with the Third Defendant, the Simbu Provincial Internal Revenue Commission and also the Ombudsman Commission.

7. On 12 December 2000, the First Respondent took action against the Applicant by ordering that he be transferred to Tari in the Southern Highlands Province by 01st January 2001. If the Applicant did not take the transfer, the First Respondent would take disciplinary action by charging him for disobeying lawful orders.

8. The Applicant wrote to the First Respondent to inform him that as he had previously served in Mendi, in the Southern Highlands Province for 7 years. As such, he requested the First Respondent to rescind his decision to transfer him to the Southern Highlands Province. The Applicant also gave another reason to the First Respondent to rescind his decision to transfer the Applicant and that is, the Applicant’s life is in danger. The Applicant was accused of killing a Tari man in a fatal motor vehicle accident some years back and for his own safety in case of any backlash, he was transferred to Simbu Province.

9. Despite his plea or request, the Applicant received two Notices of Suspension from duties without pay dated 2 February 2001 and 4 May 2001 respectively and four serious disciplinary charges. The charges related to the Applicant’s disobedience to take the transfer to Southern Highlands Province. On 17 July 2001, the Applicant filed this application for judicial review. He sought to review the decision of the First Respondent to first transfer him to Tari Police Station and also to suspend him for refusing to transfer to Tari Police Station in the Southern Highlands Province. Events overtook the application seeking review of the decisions to transfer and also suspend the Applicant after Chief Superintendent Samson Mapi took over as the Provincial Police Commander of Simbu Province. Mr Mapi had the Applicant transferred internally to Officer in Charge of Traffic in Kundiawa. As a result, the Applicant did not pursue the application for judicial review.

10. But surprisingly, on or around 3 October 2003, the Applicant received a Notice of Dismissal under the hand of the Third Respondent. It cited his refusal to take transfer to the Southern Highlands Province as the reason. The Notice of Penalty for Serious Disciplinary Offence addressed to the Applicant but undated reads as follows:

"TAKE NOTICE

The four serious discipline charges levelled against you of, wilfully (sic) disregard lawful orders on two incidents and disobeying lawful orders issued to you on two separate incidents which was served on you on the 15 May and 24 December 2001 have been adjudicated and a finding of guilty have been made on the four charges.

A written explanation from you was received at Police Headquarters.

Reasons for decision are as follows.

There is sufficient evidence contained in the attached statements and reports to justify finding that you are guilty as charged. There is evidence on the four charges that you did disregard and disobeyed lawful orders given to you by your senior officers for you to be transferred to Mendi police station but you fail (sic) to obey lawful orders. Directives were given to you for the transfer but you defied them and initiated civil actions to stall the directives for your transfer. You as senior NCO have demonstrated your willingness to do almost anything to only do what suits yourself and not for the good of the Constabulary.

For this reasons (sic) I find you guilty as charged and by way of penalty, your are demoted to Senior Constable on salary point FO41 on the first charge and you are dismissed from the police on the other three charges effective from the date of service of this "Notice of Penalty".

A submission of penalty was received at Police Headquarters and was taken into account when making a decision as to the penalties.

Reasons for the imposition of this penalty are as follows:

•	The nature and the seriousness of the offence.

•	The deterrent effect it will have on other members of the Constabulary.

•	That your conduct has breached the Constabulary standards.

•	If this type of behaviour is allowed to continue, the discipline of the Force will be severely impacted upon.

Sam E Inguba QPM
Commissioner of Police"

11. As a result of the Third Respondent’s decision to dismiss him from the Police Force, the Applicant revived the application for judicial review and on 19 November 2004, the National Court granted leave to amend his application to review the decision to transfer and suspend him to also include one of dismissal from the Police Force. As I said earlier, theses are the three decisions, the subject of this judicial review.

GROUNDS FOR REVIEW

12. In the Amended Statement in Support for Judicial Review filed on 27 December 2006, the Applicant relies on the following grounds of review:

"4.	(b)	The Plaintiff sought declarations as follows:

(i)	the First Defendant sudden change of mind by picking on the Plaintiff and directing his immediate transfer of the Province and instituting disciplinary actions within a short span of time whilst the investing (sic) into his alleged stealing of K24,000.00 which money belongs to the Simbu Provincial Government is pending where the Plaintiff is a key witness is tainted with malicious motives.

(ii)	The decision to transfer the Plaintiff out of the Province by the Defendant was not based on any valid and acceptable reasons and hence the transfer is void and of no effect.

(iii)	The purported law upon which the Notice of Suspension dated 5th February 2001 is issued and served on the Plaintiff is not known in law nor in existence in this jurisdiction and hence such Notice is invalid and of no effect.

(iv)	Further to paragraph (c) hereof, such Notice is invalid and of no effect as the Notice was served well after the expiry of the twenty one (21) days.

(v)	The continued suspension after the expiry of twenty one (21) days is invalid and of no effect as the Defendants did not make a decision at the time to extend the suspension.

(vi)	The subsequent Notice Of Suspension dated 4th May 2001, served on the Plaintiff is invalid and of no effect as it is based on a law now (sic) known nor in existence in this jurisdiction.

(vii)	Where the declaration sought in paragraph (f) is granted, if (sic) follows that the Serious Disciplinary Offence Report (SDOR) against the Plaintiff dated 29th March 2001 and served on 15 May 2001, is also defective and of no effect.

(viii)	The 1st Defendant picking on the Plaintiff and trying to effect his transfer out with haste followed by laying disciplinary charges and not applying the same measure on other transferees on the same list is unfair and unjustified in the circumstances".

ISSUES

13. My perusal of the grounds of review shows that the issues arising in the application for judicial review can be canvassed into three main issues as follows:

1.	whether the First Respondent had authority to transfer the Applicant from the position of Officer in Charge of Traffic in Kundiawa to Tari Police Station,

2.	whether the decision to transfer the Applicant from the position of Officer in Charge of Traffic in Kundiawa to Tari Police Station is so unreasonable that no tribunal of fact and law could lawfully have arrived at such a decision.

3.	If I find that the decision of the First Respondent to transfer the Applicant is made without authority and or unreasonable in the circumstances, what is the effect of the subsequent decision to suspend the Applicant from duties without pay and finally the decision to dismiss the Applicant from the Police Force?

THE LAW - JURISDICTION

14. The Court’s jurisdiction to review actions and decisions of administrative, statutory and quasi judicial bodies is found under section 155(4) of the Constitution and Order 16 of the National Court Rules. Order 16 rule 1 of the National Court Rules states as follows:

"1.	Cases appropriate for application for judicial review.

(1)	An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

(2)	An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to -

(a)	the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and

(b)	the nature of the persons and bodies against whom relief may be granted by way of such an order; and 

(c)	all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on the application for judicial review."

15. In the often quoted case on application for judicial review, Kekedo -v- Burns Philip (PNG) Limited [1988-89]PNGLR 122, it is said that judicial review is available where the decision making authority exceeds its’ powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abused its powers.

REASONS FOR DECISION

16. At the outset, it is very important to understand that "the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process." See page 124 of Kekedo’s case (supra). I accept this fundamental principle of law in applications for judicial review and apply it to the present case.

17. As to the first issue of whether the First Respondent had authority to transfer the Applicant from the position of Officer in Charge of Traffic Division in Kundiawa to Tari Police Station, I consider that this is the main issue in the application for judicial review. This is because all the other issues like the lawfulness of the decision of the First Respondent to suspend the Applicant and subsequently the decision of the Third Respondent to dismiss the Applicant from the Police Force are secondary.

18. I now turn to the issue of whether or not the First Respondent had authority to transfer the Applicant from Kundiawa to Tari Police Station. First, there is before me an Internal Minute dated 12 December 2000 written by the First Respondent to advise the Applicant and other members of the police of their transfers. He makes reference to a "long awaited Divisional Directive on transfer dated 04th November 1999". 

19. But I have a problem with this purported Divisional Directive on transfer. There is no evidence of this "Divisional Directive on transfer dated 04th November 1999" placed before me, thus I do not know if there is such a direction in existence and who issued this direction. Did the Third Respondent issue the direction to transfer the Applicant? This is the first problem I find with the decision of the First Respondent to transfer the Applicant. In my view, this is a crucial piece of evidence that goes to the very heart of the dispute. That is, whether the First Respondent had authority to direct the transfer of Applicant from Kundiawa to Tari Police Station in the Southern Highlands Province.

20. In the absence of the evidence of "Divisional Directive on transfer dated 4 November 1999", I find that the First Respondent did not have the authority to issue the Internal Minute of 12 December 2000 directing the Applicant to transfer from Kundiawa to Tari Police Station.

21. The second problem is that, there is no evidence of delegation of the Third Respondent’s authority under section 48 of the Police Act 1998 to show that the First Respondent was given the authority to make the decision to transfer the Applicant from Kundiawa to Tari Police Station. For it is the law under section 48 of the Police Act 1998 that the authority to transfer members of the Police Force is vested only in the Commissioner of Police. This provision states:

"Division 5.-Transfers and Promotions.

48.	Principles to apply to transfers and promotions.

(1)	In this section, "transfer" of a member to a position means the appointment of a member to a position in which the member will hold the same rank and be entitled to at least the same level of salary.

(2)	A decision to transfer or promote a member to a vacancy in the Regular Constabulary Branch shall be made by fair and equitable procedures that:-

(a)	include when possible inviting applications and selection on the basis of the merit of applicants; and

(b)	prevent unjust discrimination, whether in favour of or against a person; and

(c)	allow at all times to the Commissioner the discretion to transfer any member to any location where the exigencies of the Service so require.

(3)	Where the Commissioner makes an order directing the transfer of a member of the Force to other duties not involving a reduction in pay, the member will comply with the order.

(4)	Notwithstanding Subsection (2), where a decision is made to transfer a member or promote a member under Section 41, the provisions of Subsection (2)(a) do not apply.

(5)	Notice to a member of a transfer of that member shall be given in writing and allow a reasonable time to him to arrange his personal affairs before the permanent date of the transfer takes effect.

(6)	For the purposes of this Part, merit of a member comprise:-

(a)	the integrity, diligence and good conduct of the member; and

(b)	the potential of the member to discharge the duties of the position in question; and

(c)	the industry shown by the member in performance of the duties of office in the course of the member's career; and

(d)	the physical and mental fitness of the member to perform the duties of the position in question.

(7)	For the purpose of determining the potential of a member to discharge the duties of a position, the following factors shall be taken into account:-

(a)	the performance of duties of office in the course of the member's career;

(b)	the range of practical experience of the member in the Force or outside the Force;

(c)	the ability, aptitude, skill, knowledge and experience determined by the Commissioner to be necessary for the proper performance of the duties of the position in question;

(d)	any relevant academic, professional or trade qualifications of the member.

(8)	In the selection of a member of the Regular Constabulary Branch for promotion, consideration shall be given to the merit of the persons considered for selection and in the event of equality of merit between two or more members, to the relative seniority of such members.

(9)	For the purposes of determining merit, the Commissioner may require a member to submit to a psychological assessment to be carried out by a person whom the Commissioner considers to be suitably qualified". (Emphasis is mine).

22. I consider that the authority to transfer members of the police from one geographical location to another and or from one position to another is vested in the Commissioner of Police who is the Third Respondent in this case. This is clear from section 48 of the Police Act 1998. Unless the Commissioner of Police vests in the members of the Police Force or delegates this authority to other members of the Police Force, any exercise of authority of the Commissioner of Police by members of the Police Force would be illegal, null and void.

23. Section 16 of the Police Act 1998 provides for the vesting of authority in the members of the Police Force as follows:

"16.	Vesting of powers of members of the Force.

(1)	Where the Commissioner thinks it for any special reason desirable, the Commissioner may, by written notice, vest in a person, or in members of a class of persons, some or all of the powers, functions, duties and responsibilities of a member of the Force under any law.

(2)	A person to whom Subsection (1) applies is deemed, in relation to the powers, functions, duties and responsibilities vested in that person under that subsection, to be a member of the Force".

24. I find that there is no evidence in writing from the Third Respondent that he vested his authority on transfer of members of the Police Force under section 48 of the Police Act to the First Respondent or the Second Respondent as required by section 16 of the Police Act 1998. In the absence of any written authority of the Third Respondent to the First Respondent or the Second Respondent to transfer the Applicant from Kundiawa to Tari Police Station, I find that the First Respondent did not have the authority to transfer the Applicant from Kundiawa to Tari Police Station. The same goes for the Second Respondent.

25. I further find that there is no evidence in writing from the Third Respondent to show that he delegated his authority on transfer of policemen under section 48 of the Police Act 1998 to the First Respondent or the Second Respondent as required by section 17 of the Police Act 1998. This provision states that:

"17.	Delegation.

Subject to the provisions of this Act in relation to any specific power or function, the Commissioner may delegate in writing all or any of the Commissioner's powers and functions under this Act (except this power of delegation)".

26. In the absence of any written authority of the Third Respondent to the First Respondent or the Second Respondent to transfer the Applicant from Kundiawa to Tari Police Station, I find that the First Respondent did not have the authority to transfer the Applicant from Kundiawa to Tari Police Station. The same goes for the Second Respondent. 

27. From the findings I have made above, it seems to me that the decision of the First Respondent to transfer the Applicant from Kundiawa to Tari Police Station was made with haste and with no regard as to who had authority to make decisions to transfer members of the Police Force under section 48 of the Police Act 1998. It is also clear to me that the First Respondent did not bother to check whether he had the authority to direct the Applicant to transfer from Kundiawa to Tari Police Station. I can understand why he did not bother to check and that is, he had an ulterior motive. 

28. This leads me to say that the decision of the First Respondent is discriminatory. It is also biased and made with ulterior motive. The ulterior motive is that, the First Respondent intended and eventually succeeded to remove the Applicant as far as possible from Kundiawa where there is pending the issue of the unaccounted K24,000.00. The decision is an act of sabotage. It frustrated the investigations conducted by the Applicant into the unaccounted K24,000.00 because the Applicant was eventually dismissed and no one knows what became of the K24,000.00.

29. The decision was made despite the Applicant’s earnest plea or request for the First Respondent to rescind the decision to transfer him because first the Applicant had previously served as a policeman in Mendi for 7 years and secondly and most importantly, his life is in danger as a result of being involved in a fatal road accident where a Tari man was killed and there is threat by the relatives of the deceased to attack him. 

30. To my mind, the Applicant’s reasons to refuse transfer are valid and reasonable given his tragic past history in the Southern Highlands Province. I find the First Respondent’s direction for the Applicant to take transfer to Tari Police Station also harsh and oppressive in the circumstances. I also find that the decision is discriminatory. It runs counter to what subsection 2(b) of section 48 of the Police Act 1998 says.

31. In the end, I am satisfied that the First Respondent and also the Second Respondent did not have the requisite authority to transfer the Applicant from Kundiawa to Tari Police Station. Further, I find that the decision of the First Respondent is discriminatory, biased and made with bad faith. Accordingly, I find that the decision to transfer the Applicant is null and void. 

32. Next, even if it is argued that it is not the decision of the First and Second Respondents to transfer the Applicant from Kundiawa to Tari Police Station but that of the Third Respondent, I find there is no evidence before me to show that it is the Third Respondent who made the decision to transfer the Applicant from Kundiawa to Tari Police Station.

33. The evidence of the decision of the Third Respondent to transfer the Applicant is crucial here. As I said earlier, the authority to transfer members of the Police Force is vested in the Third Respondent. And so, this leads me to the next issue and that is; under what circumstances or grounds may the Third Respondent transfer members of the Police Force? According to subsection 2 of section 48 of the Police Act 1998, the decision to transfer must be fair and equitable. This includes the following circumstances or grounds that the Third Respondent may take into account to transfer members of the Police Force:

1.	the members of the Police Force must submit their applications and the selection must be based on merit of applicants; and

2.	there must no unjust discrimination in the selection process, whether in favour of or against a person; and

3.	but at all times, the Commissioner has the discretion to transfer any member to any location where the exigencies of the Service so require.

34. The first ground by which the Commissioner of Police shall base his decision on to transfer members of the Police Force is on merits. This shall occur after members of the Police Force apply for transfer. It is based on merits and subsection 6 of the same section provides the criteria by which the Commissioner of Police shall take into account when determining whether members’ application for transfer have merits. They are as follows:

1.	the integrity, diligence and good conduct of the member; and

2.	the potential of the member to discharge the duties of the position in question; and

3.	the industry shown by the member in the performance of the duties of office in the course of the member's career; and

4.	the physical and mental fitness of the member to perform the duties of the position in question.

35. The second ground is where the Commissioner of Police shall take into account when considering applications for transfers is where the decision to transfer members must not be discriminatory. 

36. The third ground is where the Commissioner of Police has the discretion to transfer any member of the Police Force at anytime but only when the exigencies of the service of the Police Force requires.

37. In this case, I find there is no evidence of the Third Respondent’s decision to transfer the Applicant from Kundiawa to Tari Police Station based on the first ground. In addition, I do not know if the considerations under section 48(6)(a)-(d) of the Police Act 1998 were taken into account if the Third Respondent did indeed make a decision to transfer the Applicant from Kundiawa to Tari Police Station. Likewise, I find there is no evidence before me to show that it is the Third Respondent’s decision to transfer the Applicant from Kundiawa to Tari Police Station and it was made for exigency reasons. 

38. Furthermore, the Applicant did not say in his evidence that he applied for transfer from Kundiawa to Tari Police Station. This is because under subsection 2(a) of section 48, members of the Police Force apply for transfers. Based on their applications, the Commissioner of Police shall make a decision. In this case, there is no evidence that the Applicant applied for transfer and more so to Tari Police Station. If there is indeed a decision made by the Third Respondent to transfer the Applicant from Kundiawa to Tari Police Station, I find that the decision runs counter to requirement under section 48(2)(a) of the Police Act 1998 where members of the Police Force like, the Applicant are invited to apply for transfer and after they apply, the Commissioner then makes a decision. Accordingly, if indeed there is a decision of the Third Respondent to transfer the Applicant from Kundiawa to Tari Police Station, it is null and void.

39. Having found that the decision of the Respondents to transfer the Applicant from Kundiawa to Tari Police Station is null and void, the last question is, what is the effect of such a finding on the subsequent decisions of the First Respondent to suspend the Applicant from duties and without pay and the ultimate decision of the Third Respondent to dismiss the Applicant from the Police Force?

40. This is an issue that I have given some considerable thought as it is not as straight forward as one may think. There may be some truth if it is argued that since events have overtaken the decision of the Respondents, more particularly that of the First Respondent to transfer the Applicant from Kundiawa to Tari Police Station, it would be a futile exercise as well as an academic exercise to review the decision to transfer in this application for judicial review. This is because the Respondents have subsequently suspended and eventually dismissed the Applicant from the Police Force following the laying of and finding of guilt of serious disciplinary offences against the Applicant. 

41. It maybe also argued that the Applicant should have only applied for judicial review of the decision to dismiss him from the Police Force because that is the decision that is affecting him at the moment. That is, he is no longer a member of the Police Force since or around 3 October 2003.

42. I agree that there is merit in this proposition. It is also logical and sound. But at the same time, I am of the opinion that I cannot go past or simply ignore the decision of the First Respondent to transfer the Applicant from Kundiawa to Tari Police Station. As I have found, that decision is null and void. I take this view because the ultimate decision by the Third Respondent to dismiss the Applicant from the Police Force had its origin in the decision of the First Respondent to transfer him from Kundiawa to Tari Police Station. As the Applicant did not take the transfer, he was suspended.

43. At the same time, the Applicant was served four Serious Disciplinary Charges. These Serious Disciplinary Charges related to the Applicant’s refusal to take the transfer to Tari Police Station. Ultimately, these Serious Disciplinary Charges led to the decision of the Third Respondent to dismiss the Applicant from the Police Force on 3 October 2001.

44. In my view, the decision of the Third Respondent to dismiss the Applicant from the Police Force after the Applicant’s failure to obey an order to transfer from Kundiawa to Tari Police Station is the end product of the long and gruesome disciplinary process under the Police Act 1998. See Part IV - sections 18 - 34. I consider that this is how the disciplinary process should take place. It should be allowed to take its course without being interrupted or frustrated at any stage. 

45. What has happened here is a slightly different scenario in that before the Respondent commenced the disciplinary process, the Applicant applied for judicial review of the decision of the Respondents to transfer him for Kundiawa to Tari Police Station. Unfortunately for him, he was slapped with a suspension notice and four serious disciplinary charges which eventually led to his dismissal from the Police Force. As a result, he did not complete the application for judicial review. But to my mind, the decision to dismiss him from the Police Force is part and parcel of the whole disciplinary process within the Police Force as per the Police Act 1998 which originated from the Applicant’s refusal to comply with an order from the Respondents to transfer to Tari Police Station.

46. Proceeding on this premise, I am of the opinion that whatever the finding of the Court in respect of the decision to transfer the Applicant from Kundiawa to Tari Police Station is, it would affect the ultimate decision of the Third Respondent to dismiss the Applicant from the Police Force. It follows from the foregoing reasons that since I have found that the decision of the Respondents to transfer the Applicant from Kundiawa to Tari Police Station null and void, surely that decision must affect the subsequent decisions of suspension and dismissal of the Applicant.

47. Thus, I find the decision of the First Respondent to suspend the Applicant after the Applicant did not take the transfer also null and void. I also find the decision of the Third Respondent to dismiss the Applicant from the Police Force null and void.

ORDERS

In the end, I grant the application for judicial review and make the following orders:

1.	A declaration that the decision of the First Respondent to transfer the Applicant from Kundiawa to Tari Police Station dated 12 December 2000 is illegal, null and void.

2.	A declaration that the decision of the First Respondent to suspend the Applicant from duties without pay dated 5 February 2001 is illegal, null and void.

3.	A declaration that the decision of the First Respondent to suspend the Applicant from duties without pay dated 4 May 2001 is illegal, null and void.

4.	A declaration that the decision of the Third Respondent to dismiss the Applicant from the Police Force on 3 October 2003 is illegal, null and void.

5.	An order in the nature of certiorari removing into this Honourable Court and quashing the decision of the First Respondent to transfer the Applicant from Kundiawa to Tari Police Station dated 12 December 2000. 

6.	An order in the nature of certiorari removing into this Honourable Court and quashing the decision of the Third Respondent to transfer the Applicant from Kundiawa to Tari Police Station dated 12 December 2000.

7.	An order in the nature of certiorari removing into this Honourable Court and quashing the decision of the Third Respondent to suspend the Applicant from duties without pay dated 5 February 2001 is illegal, null and void.

8.	An order in the nature of certiorari removing into this Honourable Court the decision of the First Respondent to suspend the Applicant from duties without pay dated 4 May 2001.

9.	An order in the nature of certiorari removing into this Honourable Court the decision of the Third Respondent to dismiss the Applicant from the Police Force dated 3 October 2003.

10.	An order that the Applicant be reinstated to his former substantive rank of Sergeant and position of Officer in Charge, Traffic at Kundiawa Police Station.

11.	An order that the Respondents pay the Applicant’s loss of salaries and entitlements from the period of his suspension to the date of this order.

12.	The Respondents pay the Applicant’s costs of the application for judicial review to be taxed if not agreed.

13.	Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

________________________________________

Koningi Lawyers: Lawyers for the Applicant
Acting Solicitor General: Lawyers for the Respondents