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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 583 of 2012
BETWEEN:
DENNIS ABEL KOSAM
Plaintiff
AND:
MEMAFU KAPERA AS THE MANAGING DIRECTOR OF THE NATIONAL BROADCASTING CORPORATION
First Defendant
AND:
NATIONAL BROADCASTING CORPORATION
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Nablu, J
2017: 19 April
29 June
JUDICIAL REVIEW – Staff disciplinary process – Clauses 153, 155 and 156 – National Broadcasting Corporation Staff Determination No.1 of 1975 (as amended) – whether the determination is the applicable law – disciplinary procedure provided in the determination – Kapera v. Yaruso (2016) SC 1533 followed – whether the Managing Director has the power to terminate officers – grant of relief – reinstatement and or back payment of lost salaries and entitlements – what is a fair and equitable remedy – delay – seriousness of the breach warrants reinstatement and back payment of salaries and entitlements.
Cases cited:
Ramram v. National Broadcasting Commission (1990) N1110
Kapera v. Yaruso (2016) SC 1533
The Central Bank of PNG v. Gabriel Tugiau (2009) SC103
Rose Kekedo v. Burns Philip Pty Ltd [1988-89] PNGLR 122
Mision Asiki v. Manasupe Zurenouc [2005] SC 797
Issac Lupari v. Sir Michael Somare and Others (2008) N3476
Paul Saboko v. Commissioner of Police (2006) N2975
Peter Bon v. Mark Nakgai (2001) PNGLR 18
Ombudsman Commission v. Peter Yama (2004) SC747
Counsel:
E. Hampalekie, for the Plaintiff
C. Kup – Ogut, for the First and Second Defendants
I. Mugugia, for the Third Defendant
29 June, 2017
1. NABLU, J: Dennis Kosam seeks to review the decision of the Managing Director of the National Broadcasting Corporation to terminate him from employment on 10th September 2012. The plaintiff was employed as the Acting Executive Producer – Sports prior to his termination.
2. The background facts are that the plaintiff was the Head of Sports for National Radio and Kundu Television 2. He was employed with the National Broadcasting Corporation since 2000. At the time he was terminated, he was the Acting Executive Producer for Sports. His main role was to organise the coverage of major sporting events like the SP Inter-City Cup and overseas Kumul rugby games.
3. The plaintiff as part of his duties had prepared and submitted a sports budget for funding of a 12 men team to attend and cover the South Pacific Games at Noumea, New Caledonia in 2012.
4. Following a budget cut and lack of funding, the team was reduced to a one man team. It is not disputed that the plaintiff then on social media, posted on his Facebook status that “...for the first time – the NBC was not sending a team... someone was not doing their job.” The comments were made sometimes in August 2011.
5. When the Managing Director at the time, Memafu Kapera became aware of this, he wrote to the plaintiff and demanded an explanation. The plaintiff provided a written explanation on 29th August 2011.
6. On 18th May 2012, the plaintiff was formally charged with the offence of divulging confidential information. A notice of charge under Clause
155 of the National Broadcasting Corporation (National Officers and Employees) Determination No.1 of 1975 was served on the plaintiff.
The plaintiff replied to the charge on 4th June 2012. On the 3rd of September 2012, the Managing Director suspended the plaintiff from duties for an indefinite period pending the disciplinary committees’
deliberation. The plaintiff was terminated on 10th September 2012. It is not disputed that the termination notice was signed by the Managing Director. The plaintiff appealed to the
National Broadcasting Corporation (NBC) Board on 18th September 2012 after receiving the decision to terminate him. It is unclear in the evidence before me whether the NBC Board had considered
and determined the plaintiff’s appeal.
7. The plaintiff seeks various declaratory orders and an order to quash the Managing Director’s decision and an order reinstating
him to his former position without loss of salary and entitlements and costs.
8. The plaintiff relied on his affidavits which were filed on 3rd October 2012, 19th November 2014 and 4th May 2016.
9. In response, the defendants filed two affidavits of Miglshi Girua’konda which were filed on 19th August 2016.
10. The affidavits were all contained in the Review Book.
11. The grounds of review which the plaintiff relies on to challenge the decisions are contained in the Statement of Support pursuant to Order 16 of the National Court Rules, they are as follows:
12. The parties agreed to eighteen (18) legal issues for determination. In my view a number of these issues are repetitious and frivolous. At the hearing and as per the plaintiff’s amended written submissions, the issues were narrowed down to seven (7) legal issues.
13. The legal issues were:
14. In my view, these issues can be further reduced and simplified further as follows;
15. The relevant provisions of the disciplinary process is captured in Part 10 of the National Broadcasting Corporation Staff (National Officers and Employees) Determination No. 1 of 1975 (Determination).
16. It is necessary to set out the relevant provisions of the Determination as follows;
153. OFFENCES AND PUNISHMENTS
An officer –
is guilty of an offence and is liable to be dealt with and punished under this Part.
154. DEALING WITH MINOR OFFENCES
155. DEALING WITH SERIOUS OFFENCES
Where there is reason to believe that an officer other than a Divisional Head has committed an offence, specified in clause 153 of this Determination other than an offence which may be dealt with under clause 154 the succeeding provisions of this clause apply.
156. POWERS OF BOARD IN RELATION TO SERIOUS OFFENCES
Where –
the Board may impose a punishment specified in paragraph (i), (ii), (iii) or (iv) of sub – clause (d) of the last preceding clause; or may dismiss the officer from the service of the Commission.
Breach of Disciplinary Procedure
17. The plaintiff contends that the Managing Director breached all the required steps in the disciplinary process as provided for under Clauses 155 and 156 of the Determination. The plaintiff argued further that the disciplinary procedure is a prescribed mandatory process which is contained in the Determination. The alleged breach is from the beginning, therefore, it renders the rest of the process illegal. The main contention is that the Managing Director exercised powers which he did not have. The power to charge and suspend an officer is vested in the Chairman of the National Broadcasting Corporation Board. The procedure in the Determination is mandatory.
18. Mr Kup-Ogut of counsel for the first and second defendants submitted that the Determination is not applicable for two reasons. The first reason is that the Determination is not law, it is not subordinate legislation therefore, it does not have legal force. The State is not bound to follow the Determination. The defendants however, argue that if the Court is of the view that the Determination is applicable then the inconsistencies in the Determination render it also inapplicable. In other words, the Chairman deliberates on the charge and imposes punishment and then later sits as part of the Board to consider an aggrieved officer’s appeal.
19. The State’s submission was confusing. According to the written submission they stated that the plaintiff argued that the Managing Director intentionally or negligently failed to make a recommendation to the NBC Board to consider dismissing the plaintiff from employment. Ms Mugugia of counsel for the third defendant argued that the Chairman and Managing Director were two separate and distinct officers. The Managing Director did not recommend the termination of the plaintiff’s employment, therefore, the first ground is misconceived and should be dismissed. I am unable to accept this submission as it is confusing when applying the law to the facts. I will come to this later in my reasoning.
20. Ms Mugugia however, conceded with the submission that the applicable law is the NBC Determination.
21. At the outset, the first issue to be determined is; what is the applicable law? Is the Determination the applicable law? If it is found that the Determination No.1 of 1975 is the applicable law then the disciplinary process is, as prescribed under the Determination.
22. Mr Kup-Ogut of counsel argued that, the Determination is not applicable. He submitted that the Determination is not applicable because it is not law or subordinate legislation, a regulation or a by – law. Therefore, the Determination is only a statement of a NBC officer’s terms and conditions of employment. Counsel submitted that the case of Ramram v. National Broadcasting Commission (1990) N1110 to support his contention. Counsel referred this court to Her Honour Justice Doherty’s judgment. Her Honour found that the Determination;
“...sets out the terms and conditions and procedures of recruitment and discipline of employees of the National Broadcasting Corporation.”
23. He further submitted that the Determination was not mandatory and referred the Court to the decision of Her Honour at page 5 of that Judgement. It is necessary for me to set it out here. Her Honour stated that:
“The Determination says if an officer is guilty of an offence in such a situation the Chairman may call upon the officer to give an explanation. This is not a mandatory obligation on the Chairman, he has a discretion to call upon the officer or not. Paragraph 155 deals with serious offences and the powers of the Commission in relation to the finding of a serious offence. These include recommending to the Board that the officer be dismissed from the service (paragraph 155(d)).” (Emphasis mine).
24. The plaintiff and the State argued that the applicable law is the Determination. To support this proposition, they submitted the recent Supreme Court case of Kapera v. Yaruso (2016) SC 1533.
25. The Supreme Court held in that case that the applicable law was the NBC Staff Determination No. 1 of 1975. The Court was of the view that the Managing Director was not the Chairman of the Board and therefore could not exercise the disciplinary powers. The Chairman was vested with the disciplinary powers as provided for in the Determination.
26. The plaintiff and the State’s counsel urged this Court to follow the Supreme Court decision which is binding on this Court.
27. The first defendant’s lawyer however urges this Court not to follow this Judgment. This submission is quite mischievous and baseless. I reject this submission outright. This Court is bound to follow the decision of the Supreme Court. I see no exceptional reasons why I should not follow the Supreme Court’s decision. It is clear that Mr Kup-Ogut attempts to mislead this Court. I remind Mr Kup-Ogut, he is an officer of this Court first and foremost. Therefore, as an officer of the Court you have an ethical duty to this Court. That duty includes the duty not to mislead the Court. Apart from this, there are other reasons why I reject his submissions.
28. The first defendant argued that unlike the Public Services (Management) Act which provides a specific section which authorizes or enables the Departmental Head, that is, the Secretary for Personnel Management to enact regulations (see s.70 of the Public Services (Management) Act). The equivalent enabling provision is not provided for in the Broadcasting Corporation Act.
29. The proposition put to the Court by the defendant is that the Determination has no legal basis. Mr Kup–Ogut referred the Court to various legislation like the Broadcasting Corporation Act 1973 (Chapter 149) and the legislation that preceded it, the repealed Broadcasting Commission Act 1973.
30. According to Section 22 of the Broadcasting Corporation Act, the Corporation may appoint persons to be officers of the Corporation. Subject to Section 22 and the regulations, the officers hold such terms and conditions as determined by the Corporation. The Board of the Corporation is responsible for the affairs of the Corporation.
31. The defendant’s argument is that the Determination is not mentioned in the earlier legislation, therefore, it is not applicable and it is not law.
32. I am of the view that, the argument advanced by the first defendant is flawed for two reasons. Firstly, Section 22 of the Broadcasting Corporation Act, is clear, the Corporation is responsible for determining the officer’s terms and conditions of employment. The corporation is the National Broadcasting Corporation and the body responsible for the affairs of the Corporation is the Board.
33. Section 22 of the Broadcasting Corporation Act is the enabling provision of the law which allows the Board to determine the officer’s terms and conditions of employment.
34. The Broadcasting Commission Act was adopted in 1973. There was a change in the name of the Commission in 1995 through the Broadcasting Commission (Change of Name and Corporate Structure) Act No. 49 of 1995. The Commission changed its name and structure to that of a Corporation. Some of the legislative changes included the clarification of the Chairman’s role and the establishment of the Service of the Corporation which comprised of the newly established offices of the Managing Director and the Deputy Managing Director. While these were significant changes to the structure, the power to determine the officer’s terms and conditions in my view remained the same.
35. For the foregoing reasons, I am persuaded that the NBC Determination is still valid and in force. I reject the first and second defendant’s argument that the Determination is not a by – law. I also find that the charge notice is entitled Notice of Charge under Clause 155. The heading is stated clearly as the “National Broadcasting Corporation (National officers and Employees) Determination No.1 of 1975 as amended to date”.
36. It is clear in the evidence before me, that the charge was imposed under the Determination (Annexure D of the Affidavit of Dennis Abel Kosam, pages 37 and 38 of the Review Book). The termination letter also refers to Clause 153 of the Determination (Annexure G of the Affidavit of Dennis Kosam, pages 49-51 of the Review Book). I find that the disciplinary process the Managing Director purportedly followed was that under the Determination. It is quite bizarre for the first defendant to now deny that the Determination is not a by – law and the plaintiff cannot rely on it. The first and second defendant’s argument is flawed. I note that the first and second defendant advanced this line of argument in the Supreme Court and the Court stated that:
“...It is our view that in essence, Mr Kapera is estopped from denying Ms Yaruso from relying on the wording of Clause 155 of the Determination, the very wording he attempted to rely upon.”
37. As stated earlier in the Judgement, the first and second defendants argued that the Determination was not mandatory and referred to a passage by Doherty J. This argument is also without merit and I reject it. When reading the whole paragraph of the Judgment, Her Honour does not state that the determination is not mandatory; she is simply, referring to the Chairman’s discretion to call upon a officer to give an explanation. Mr Kup-Ogut has misconstrued Her Honour Justice Doherty’s words. This submission is clearly misconceived and without merit.
38. Furthermore, in the case of The Central Bank of PNG v. Gabriel Tugiau (2009) SC103 at paragraph 42, the Supreme overruled the line of cases which included Ramram’s case, for the reason that they did not correctly represent the law and should not be followed.
39. For those reasons, I find that the first and second counsel’s submissions are without merit and I reject them all in full.
40. Having found that the applicable law is the NBC Staff Determination, I will now consider the disciplinary procedure in the Determination. The disciplinary offences are listed in Clause 153 of the Determination. An officer who except in the course of official duty, uses or divulges, directly or indirectly, any information concerning the Commission or public business or any matters of which he has knowledge is guilty of an offence (Clause 153(b) of the Determination). Minor offences are dealt with by the Chairman. Serious offences are dealt with following the process under Clause 155 of the Determination.
41. Briefly the disciplinary process is initiated by the Chairman. The Chairman lays the charges. The Chairman can authorize other officers to lay charges under Clause 155(a) of the Determination. If the Chairman is of the view that the officer is charged with a serious offence and therefore should not be in office, the Chairman can suspend the officer (Clause 155(a)). The officer then has seven (7) days to respond to the charge. The Chairman then considers the charge, the officer’s reply, the reports relating to the charge and other relevant documents. If the Chairman is of the view that the charges are sustained, he can impose a penalty under Clause 155(d)(i)-(iv) of the Determination. The penalties range from a monetary fine, reduction of the officers salary or salary classification or transfer to a different area or location. If the Chairman is of the view that the officer should be dismissed, the Chairman does not have the power to terminate the officer. The Chairman makes a recommendation to the Board to dismiss the officer (Clause 155 (d)(v) of the Determination).
42. Then the Chairman notifies the officer of the punishment that he has imposed or in cases, where the Chairman recommends dismissal, the recommendation he has made to the Board. If the punishment imposed is a penalty other than a fine of less than K10.00 then the officer, has the right of appeal to the Board. The appeal to the Board must be made within 7 days. The Chairman has the discretion to extend the time to appeal pursuant to Clause 155(e) of the Determination.
43. On the other hand, if the Chairman’s recommendation is for the dismissal of the officer and the officer fails to lodge an appeal within the specified time, the Board proceeds to consider the matter. The Board can deliberate on the reports of the offence, the charge, the reply to the charge, any explanation, the recommendation of the Chairman and any other reports it considers necessary. If the Board is of the opinion that the charges are sustained. The Board has the power to impose a punishment specified or may dismiss the officer from the service of the Commission.
44. The case of Rose Kekedo v. Burns Philip Pty Ltd [1988-89] PNGLR 122 supports the proposition that judicial review is concerned with the decision making process and not with the decision itself (per Kapi DCJ at page 124 of the Judgement).
45. When applying the prescribed process of the facts to the present case, it is clear that the first defendant breached the mandatory process. The Chairman of the Board is authorised to lay the disciplinary charges. There is no evidence that the power to lay charges was delegated to the Disciplinary Committee which comprised of Janet Amean and Alan Arifeae. It is not disputed that the Disciplinary Committee laid the charges. By laying the charge without authority against the plaintiff under Clause 155, the Disciplinary Committee committed a serious error of law and acted without power. Furthermore, the Managing Director is not authorized to suspend the officer. The Disciplinary Committee nor the Managing Director have the power to consider the charges or impose a punishment under Clause 156 of the Determination. The Chairman is the lawful authority to consider the charge and impose any punishment from a fine to transfer of an officer. In regard to termination, the Chairman can only recommend to the Board to terminate the officer. It is clear in the evidence before me that the Managing Director did not have the power to terminate the plaintiff. By unilaterally exercising the power to terminate, he acted ultra vires the Determination.
46. The plaintiff has proven the first three (3) grounds of review. The first and second defendant’s had committed serious breaches of the mandatory statutory procedure for disciplining officers under the Determination. For the foregoing reasons, I uphold the plaintiff’s third ground of review.
47. In the fourth ground of review, the plaintiff contends that his right to natural justice was denied. He argued that the first defendant informed him to appeal against his termination. The evidence before me indicates that whilst his appeal was before the Board, the first defendant then instructed the Human Resources Division to pay out his final entitlements to his bank account.
48. The minimum requirement for the principle of natural justice is the duty to act fairly and to be seen to act fairly (Section 59 of the Constitution). Public officials are required to observe the principles of natural justice when making decisions in the discharge of their statutory functions and duties.
49. In the present case, by railroading the plaintiff’s right to appeal by deciding to pay his final entitlements is a decision which is unfair and tainted with bias. The plaintiff has established that the decision-maker was bias. It is clear that a reasonable fair minded observer knowing all the relevant facts would conclude that the decision-maker was bias.
50. I am of the view that the Managing Director and the Disciplinary Committee breached the plaintiff’s right to natural justice when they failed to give an opportunity to the plaintiff to make submissions on the penalty to be imposed. After consideration of the charges the Managing Director and or the Disciplinary Committee have a duty to inform the plaintiff that the charges where sustained and therefore, plaintiff should then be given the opportunity to address them on what penalty should be imposed. There was no evidence that this process was followed.
51. Furthermore, public officials are under a duty to give adequate reasons for their decisions (see Ombudsman Commission v. Peter Yama (2004) SC 747). In the evidence before me, I find that the Managing Director and the NBC Board failed to give cogent and adequate reasons for their decisions. The failure to give adequate reasons is a denial of the plaintiff’s right to natural justice. I am satisfied that the plaintiff has made out this ground of review and there was a clear denial of natural justice.
52. Now turning to the issue of relief. The question is whether the plaintiff having established the grounds of review is entitled to the relief he seeks.
53. It is trite law that judicial review applications proceed in two steps. The successful applicant after establishing its grounds of review must then make a case for the relief: Mision Asiki v. Manasupe Zurenouc (2005) SC 797. The grant of relief is discretionary.
54. In the present case, I consider that the breaches of the Determination are so serious that it warrants that the decision be quashed. The actions of the Managing Director are so blatant, a deliberate and serious breach of the law and serious breach of the plaintiff’s right to natural justice. There is evidence before me that infers that the former Managing Director abused the powers of his office and that the decision was tainted with bias. Despite the fact that there are some inconsistencies, the Managing Director is not Parliament nor, as in this case the Chairman of the Board who can pass laws or determine rules at whim. His job is to carry out his function and responsibilities within the confines of the law.
55. The next issue is whether the plaintiff should be reinstated and back paid his lost salary and entitlements to the date of his termination. Bearing in mind that the termination was made in 2012. The plaintiff argued that the plaintiff should be reinstated without loss of salary and entitlements, because he was unlawfully terminated.
56. Whilst I consider that reinstatement is a fair and adequate remedy. I am mindful that there is a delay of about five (5) years. There is no evidence before me as to whether the plaintiff’s reinstatement would cause substantial hardship or prejudice or be bad for administration of the National Broadcasting Corporation or any other person. The first defendant argued that there was a long delay and therefore the grant of relief of reinstatement would be detrimental to the good administration of the second defendant. There is however, no evidence to support these submissions. I was not referred to any evidence to substantiate the submission that reinstatement would be detrimental to the NBC’s rights or interest, they would suffer great prejudice or that it would affect the good administration of the Corporation.
57. The plaintiff argued that a delay in the prosecution of these proceedings was due to the period of time taken waiting for the outcome of the appeal to the Supreme Court by the first defendant, for the case of Kapera v. Yaruso (supra).
58. There is a difference in views in regard to whether a successful judicial review applicant should be reinstated and paid his lost salaries and entitlements. The views have differed in the cases before this Court and the Supreme Court. It appears that the grant of relief is discretionary and each case is determined on its merits.
59. In Issac Lupari v. Sir Michael Somare and Others (2008) N3476, His Honour Injia, DCJ (as he then was) granted the relief of certiorari but refused the plaintiff’s claim for reinstatement. That case involved a public office namely the position of the Chief Secretary to Government.
60. In Mision Asiki v. Manasupe Zurenouc (supra), despite a long delay, the Supreme Court considered the breach of law by the Provincial Administrator so serious, blatant, bad in law and flagrant enough to grant reinstatement and payment of all the appellant’s lost salaries and entitlements.
61. In Paul Saboko v. Commissioner of Police (2006) N2975, His Honour Justice Cannings reinstated a police officer but refuse to back pay him to the date of the termination which would result in the plaintiff gaining a windfall of seven (7) year’s salary for doing nothing.
62. The Supreme Court referred to the Judgement of His Honour Justice Gavara-Nanu in Peter Bon v. Mark Nakgai (2001) PNGLR 18. His Honour stated at pages 32 -33 of that Judgement that:
“The primary purpose of a judicial review is to determine whether the administrative action been reviewed was legal. In termination cases, it is to determine whether the termination was legal or lawful. The customary scope of judicial review therefore, is confined to question of legality. However, in this jurisdiction, the Courts have gone beyond the customary scope by using their equitable inherent supervisory review jurisdictions to order reinstatement of officers terminated unlawfully where the circumstances of the cases warranted reinstatement, and if reinstatement was the fair and adequate remedy for the plaintiff, as in Godfrey Niggins’ case. The threshold question is, what is a fair and adequate remedy for the plaintiff whose termination is declared unlawful and is therefore null and void? If the fair and adequate remedy is reinstatement then subject to Order 16 Rule 4 of the National Court Rules, such remedy should be readily granted by the Courts. In considering Order 16 Rule 4, the primary issue is whether there had been an undue delay, if not, the related issue is whether the reinstatement is likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or would be detrimental to good administration, see Steven Pupune & 7 Ors v. Aita Ivarato & Ors N1539 at p6 and NTN Pty Ltd v. Post and Telecommunication Corporation [1987] PNGLR 70. If reinstatement is refused in cases with exceptional circumstances such as those in this case because of undue delay and the other factors in Order 16 Rule 4, the Court can in my opinion, properly invoke its inherent equitable jurisdiction under Section 155(4) of the Constitution to order that the officer be treated either has having been retired or retrenched and be compensated in accordance with the appropriate rates in Public Services General Orders. Such Orders would in my opinion accord with the principle of fair and adequate remedy and would be appropriate to do justice in the circumstances of such cases.”
63. I agree and adopt His Honour’s views. In that case, His Honour granted judicial review and ordered the relief of reinstatement without loss of salary and entitlements.
64. The principle consideration for the Court to determine the issue of whether to reinstate an officer that has been unlawfully terminated is; what is a fair and adequate remedy in the circumstances.
65. The seriousness of the breaches of law, in my view, justifies the plaintiff’s reinstatement. There is no evidence as to the current status of the position the plaintiff previously occupied. Is the position vacant or has it been filled by someone else. There is also no evidence of the status of the relationship between the plaintiff and the employer. Has the relationship between the plaintiff and second defendant soured and become so noxious, that to force them to continue their relationship as employer and employee would be bad for the good administration of the NBC.
66. I am of the view that the delay is also a factor which should be considered. In my view, the plaintiff has contributed to the delay by not bringing this judicial review application earlier. The delay would be about five (5) years. The plaintiff cannot argue that he did not progress the case because of the defendant’s lawyer’s actions in disrupting their case by constantly trying to evict them and having to wait for the outcome of the Supreme Court appeal by Yaruso. At the end of the day, the plaintiff has a duty to take steps to prosecute their applications regardless of any impediment faced. This would, be a substantial amount of salaries to be repaid. This would result in unjust enrichment of the plaintiff. I am reluctant to order back payments to the date of dismissal. This would result in the plaintiff unjustly enriching himself. Public money should not be spent to make right one official’s bad decision.
67. On the other hand, the first defendant after having received the High Court’s decision should have in my view, attempted to settle the cases out of Court. Instead, the first defendant pursued these cases with a clearly flawed defence which was clearly unjustifiable and clearly without merit. It was a mere token position only meant to, in my view, prolong and impede the plaintiff’s case.
68. Therefore, I am satisfied that the fair and adequate remedy should be for the plaintiff to be reinstated to his substantive position or equivalent position forthwith and the first defendant should pay the plaintiff’s lost salaries and entitlements from the date of the decision of the NBC Board determined the other appeals which is 12th August 2013 to the date of trial. The date is 12th August 2013 when the Board determined the other appeals. In this particular case, the plaintiff is to be reinstated to his substantive position and or equivalent position and not the acting position as claimed. Notwithstanding the fact that there is no evidence of the NBC Board’s decision. I am persuaded that all these matters were heard and determined together. Therefore, there should be some consistency in the orders.
69. In regard to costs, I am of the view that the actions of the first defendant and the second defendant are blameworthy and therefore they should be penalised for pursuing a case which was clearly wrong in law and fact. Such actions are deliberate and made in bad faith, I will exercise my discretion to order that they pay the plaintiff’s costs on a solicitor – client basis. As for the State, the third defendant, they were a nominal defendant in the proceedings and they did not vigorously contest the judicial review application but ultimately conceded during trial, I make no order as to costs against them.
70. For the foregoing reasons and in the exercise of my discretion, the plaintiff’s application for judicial review is granted.
Court Orders
Orders accordingly,
________________________________________________________________
Mordelai & Associate Lawyers: Lawyers for the Plaintiff
Ninai Lawyers: Lawyers for the First, Second and Third Defendants
Office of the Solicitor General: Lawyers for the Fourth Defendant
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