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Akai v Philips [2018] PGNC 524; N7638 (19 December 2018)

N7638

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 889 OF 2017

BETWEEN:
EDISON AKAI, MASTEN WIN, LAINUS TOHONNA, STANIS WANEMBI, KIM PULUA, WILLIAMS YAMBO, AMOS TEINE & RAYMOND SENPA
Plaintiffs

AND:
C/Insp. PETER PHILIPS, Commandant, Bomana Police College
First Defendant

AND:
C/Supt PERO N’DRANO, Former Commandant, Bomana Police College
Second Defendant

AND:
GARY BAKI, Commissioner of Police
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Nablu, J
2018: 3^rd, 19^th December

JUDICIAL REVIEW – Police Training Commandant – Police trainees – power to terminate trainees – s.6, Police Act – Annexure “D”, Standing Orders – inconsistency of laws – judicial review granted.

Cases cited:

No cases cited.

Counsel:

J. Apo, for the Plaintiff
No appearance for the Defendants

19^th December, 2018

1. NABLU, J: The plaintiffs were trainee constables undergoing training at the Bomana Police College. They seek to review the decision of the Chief Superintendent, the second defendant who was the Police Training College Commandant at the time. The plaintiffs argued that the second defendant exceeded his powers or acted without power to terminate their training. The plaintiffs argued that pursuant to Section 6 of the Police Act, the Police Commissioner is the correct authority to terminate them from police training and not the second defendant.

2. The plaintiffs seek an order in the nature of certiorari to quash the decision to terminate their training and reinstate them. They also seek orders to compel the plaintiff to facilitate their pass out of Police Training or alternatively ensure that they complete their training and graduate at the next graduation. The plaintiffs also seek payment of any lost salaries and allowances.

3. The State did not enter an appearance despite the fact that the State’s counsel was present in Court when the matter was fixed for hearing. For that reason leave was granted to the plaintiffs to proceed with their application for judicial review exparte.

4. The main issue in contention is a narrow one. The issue is whether the Training Commandant of the Bomana Training College had the power to terminate the plaintiffs training. As stated earlier, Mr Apo submitted that the power to terminate a trainee is vested in the Police Commissioner by virtue of Section 6 of the Police Act. Standing Orders of the Police Training College (Annexure ‘D’) however, states that the decision to dismiss a trainee is vested in the Training Commandant following a recommendation by the Police Review Board. Given the inconsistency in the Law and the Standing Orders, it was submitted that Section 6 of the Police Act has the effect of overriding the Standing Orders and therefore takes precedence.

5. The facts of the matter are not disputed. The plaintiffs were 2016 intakes for training as constables of the Royal Police Constabulary. The plaintiffs were alleged to have been drunk or alleged to have consumed alcohol on college premises. The plaintiffs were then referred to the Police Review Board. The Review Board recommended that they be dismissed. The Training Commandant then terminated their training.

6. The plaintiffs argued that in the case of an inconsistency in the laws, an Act of Parliament takes precedence. It is trite law that in statutory interpretation, the general rule is that in cases of inconsistencies the higher law takes precedence and has the effect of overriding the subordinate legislative enactment.

7. Section 6 of the Police Act reads:

1. Subject to this section, the Commissioner, instead of requiring a person to become a member of the Force before he is accepted for training, has the discretion to accept for such training a person who is not a member of the Force.
2. Where a person who is not a member of the Force is accepted for training under this section, the Commissioner may defer his entry into the force until the training is completed to the satisfaction of the Commissioner.
3. In respect of every person in training under this section, at the expiry of the period referred to in Subsection (2), the Commissioner shall either–

(a) terminate the training of that person; or

(b) appoint that person as a member of the Force.

4. No person who is training under this section shall undertake operational service until he is appointed as a member of the Force.
5. A person in training under this section may be paid such allowance as the Commissioner determines.
6. Sections 20 to 27 inclusive apply to a person in training as if he were a member of the Regular Constabulary.
7. The Commissioner may at any time terminate the training of a person who is not a member of the Force. (Emphasis mine)
   

8. The main issue is, who is authorized to terminate a trainee recruit from police training. According to Section 6 (7) of the Police Act. The Commissioner may at any time terminate the training of a person who is not a member of the Force.

9. It is clear, the Police Act applies to and in relation to members of the Force in accordance with this Act (Section 3 of the Police Act). The term “member” in relation to the Force means a person who has made and subscribed on oath or affirmation to the service of the Force and whose service has not been terminated or otherwise concluded. Section 6(7) of the Police Act is clear that the Commissioner may terminate the training of a person who is not a member of the Force. It is clear, the plaintiffs are trainee constables, they are not members of the Force yet. The Bomana Police Training College is a recognised tertiary education institution. The Standing Orders are issued by the Training Commandant to “govern the conduct, training, administration and disciplined (sic) of staff and students...”

10. Section 12 of the Standing Orders deals with discipline. There are various rules specified in the Standing Orders such as areas which are out of bounds, absence, smoking etc. Section 12.8.1 of the Standing Orders states that:

“No intoxicating liquor will be kept, stored or consumed within the College”

11. Section 12.8.2 states further that:

“Under no circumstances will intoxicating liquor be consumed anywhere in the College other than the licensed premises namely the officers mess and the other Ranks Clubs”.

12. According to Annexure “D”, the Constable Training Review Board is constituted, whenever there are recruit constables undergoing training. The Review Board is constituted by the College Chief Instructor, the officer in charge of the Training Wing and the officer in charge of the Training Development Branch. The primary role of the Review Board is to assess the performance of the Recruit intakes under training and report to the Training Commandant. They are also responsible for recommendations to the Training Commandant in regard to discipline and termination. The Training Commandant then considers the recommendation for termination and makes a decision which is final.

13. It is also clear that the Police Commissioner has the power to delegate in writing all or any of the Commissioner’s powers and functions under the Police Act. The plaintiff submitted that even if that is the case there is no evidence of such delegation of the powers under Section 6(7) of the Police Act to the Training Commandant in the present case.

14. The plaintiffs were constable trainees. It is not disputed that they were not members of the Royal Constabulary yet. Whilst they are trainees at the Police Training College, they are not members of the Constabulary. The Police Commissioner is responsible for the superintendence, efficient organization and control of the Police Force pursuant to the Police Act (Section 198 of the Constitution). According to Section 6(3) of the Police Act, the Police Commissioner shall after the training period has expired either terminate the training of a person or appoint that person as a member of the Force. However, be that as it may, the Commissioner has the discretion to terminate the training of a person at any time.

15. I am persuaded that the Police Commissioner has the power to terminate the training of a prospective member of the Police Force and not the Training Commandant as done in the present case. My view of the interpretation of Section 6(7) of the Police Act is consistent with the application of other provisions of the Police Act when read together.

16. Section 43 of the Police Act states that, a person is not appointed a member of the Regular Constabulary unless the Commissioner is satisfied that he is physically fit, healthy, possesses the relevant qualifications, is the appropriate age and has good character.

17. Unless it is specifically provided in the law, the Commissioner has the statutory power to make such appointments (Section 43(2) of the Police Act). Such appointments are probationary until confirmed.

18. Furthermore, the disciplinary procedure under Part IV of the Police Act is also applicable to and extends to persons who are not members of the Force but who are undergoing training under Section 6. Clearly, the Legislature intended that trainee’s by virtue of the possibility they will become members of the Police Force are meant to be dealt with by the Police Commissioner. Therefore, Section 6(7) of the Police Act gives the Police Commissioner wide discretion to terminate their training at any time. I am of the view that the Training Commandant erred in law by exercising the power to terminate the plaintiff’s training. A power which he did not have.

19. I am of the view that following the consideration of the Review Board’s decision, the Training Commandant then decides whether to accept the recommendations. He or she then recommends to the Police Commissioner to terminate the training of a trainee. The Training Commandant by unilaterally exercising this power, a power he did not have, he acted ultra vires.

20. In my view, the correct process is that the Police Commissioner terminate the training of trainees. The Police Commissioner is responsible for the recruitment and appointment of the trainee Constables and therefore it is only reasonable that he terminate their training. Therefore, the plaintiff’s ground of review is upheld.

21. In relation to the relief sought. It is trite law that the grant of relief is discretionary. The plaintiff has sought an order to quash the decision of the second defendant. In the circumstances, there is a serious error of law committed, I am satisfied that the decision should be quashed forthwith.

22. However, in regard to whether this Court can reinstate the trainees. There is no evidence before me to prove the current status or circumstances at the Training College. Are there places available for the constable recruits? The passage of time is also a factor, which this Court takes into account. The termination took place about a year ago. Order 16 Rule 4 of the National Court Rules gives this Court the discretion to refuse the relief sought if such orders would prejudice the rights of an interested person or be detrimental to good administration. In this case, one year has passed and there is no evidence of whether the College is able to reinstate their training. However, the main reason, I refuse to grant this relief is for the simple reason that this is an administrative decision to be made by the Police Commissioner in consultation with the Training Commandant.

23. Therefore, in regard to this relief, I refuse to grant this order for the reason that, the Court’s findings is that the second defendant did not have the power to terminate the plaintiffs training. There is nothing that precludes the second defendant from following the correct process this time. I am of the view that it is appropriate for this Court to order that the matter is remitted back to the Training Commandant to follow the mandatory statutory process. In any event, this is an administrative issue which this Court does not have the power to make such orders.

24. The plaintiffs also seek orders to pay any lost salaries and allowances. The plaintiffs were terminated in or about 17^th October 2017. They have been out of training for over a year. To order the relief to be repaid their loss salaries and allowances for doing nothing would be unjust. They would have been unjustly enriched for doing nothing.

25. For that reason, I refuse those orders. The plaintiffs are still within time to file civil proceedings for damages if they wish to do so for the alleged loss of salaries and allowances. I will however, order that they be paid their costs of and incidental to the proceedings to be agreed if not taxed.

Court orders:

1. Plaintiffs’ application for judicial review is granted.
   
2. The decision of the second defendant dated 17^th October 2017 is quashed forthwith.
   
3. The matter is remitted back to the first defendant for further consideration.
   
4. The relief sought by the plaintiffs for reinstatement and back payment of lost salaries and allowances is refused and is dismissed.
   
5. The defendants to pay the plaintiffs costs of an incidental to the proceedings to be taxed if not agreed.
   
6. Time is abridged.
   

Apo & Co. Lawyers: Lawyers for the Plaintiff