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Kuima Security Services Ltd v Manning [2021] PGNC 300; N9055 (9 August 2021)

N9055

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 51 OF 2021 (IECMS)

KUIMA SECURITY SERVICES LIMITED
Plaintiff

AND:
DAVID MANNING, COMMISSIONER OF POLICE IN HIS CAPACITY AS REGISTRAR OF FIREARMS
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani: Miviri J
2021: 18^th May, 09^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Leave for Judicial Review – Order 16 Rule 3 NCR – Originating Summons – Statement in support – affidavit verifying facts – Locus Standi– Delay – Internal Processes Exhaustion– Arguable case – Firearm Licences Revoked – Fit and proper Person Firearms Act – Unlicenced Firearms delivery – Leave refused – cost follow event.

Cases Cited:

In re Powers, functions, duties, and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388

Wartoto v State [2015] PGSC 1; SC1411

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Counsel:

G. Geroro, for Plaintiff
C. Kuson, for Defendant

RULING

09^th August, 2021

1. MIVIRI, J: This is the Ruling on the application for leave for judicial review filed by the plaintiff pursuant to Order 16 Rule 3 (1) of the National Court Rules, “the Rules” against the decision of the First Defendant made on the 23^rd March 2021 to revoke all firearm licences issued to the plaintiff.
   
2. Secondly leave to review the decision of the first defendant also of the 23^rd March 2021 wherein the plaintiff was required to deliver up the unlicenced firearms to the First Defendant within seven (7) days of receiving notice of the Supplementary revocation of Kuima Firearms licences decision.
   
3. The Firearms Act Chapter 310 regulates the licencing and use of Firearms and for related purposes. Hence it is important for the applicant plaintiff to “have in possession” includes having in control in any place, whether for the use or benefit of the person of whom the term is used or of another person, although another person has actual possession or custody of the thing in question;” And there must be “Substantial reason” in relation to requiring a firearm, includes- (a) use in a club approved under section 32; and (b) protection of life and property; and (c) under water hunting; and (d) veterinary purposes; and (e) scientific research; and (f) commercial hunting; and (g) slaughter or destruction of Stock; and (h) sporting purposes; and (i) subsistence farming; and (j) any other purposes approved by the Registrar;” The firearms were in law held in the possession of the plaintiff set out by the affidavit of Thomas Koni sworn of the 20^th April 2021 filed 30^th April 2021. He is the general manager of Kuima Security Services Limited. He has licences for 57 Firearms which is detailed out by annexure “D” to his affidavit. Of these Eleven (11) are in Port Moresby. Kuima was engaged on the 14^th January 2020.
   
4. They were the subject of the dispute within the premises of the National Airports Corporation on the morning of 22^nd March 2021. And the affidavit of Willie Sine of Kuima Security Services deposes that he received a code red on his security communication system between 5.30am and 6.35am when he was at 5-mile bridge after completing his Gun Men postings. And he is adamant that there was no gun in the vehicle and that all gun men were posted at the various locations engaged. And given that fact went to Jackson’s airport to help disperse the crowd and help stop the fight between the security Guards from both Asila and Kuima Security.
   
5. He continues in his evidence, “There were some gunshots fired during the confrontation. I believe the gun shots came from Asila Security guards as their arms/Response Unit were already at the scene. They also wore black uniforms, the same colour as our guards. Again, no guns were deployed at the Jacksons Airport under our contract with NAC nor were any guns deployed at the Jacksons Airport on the day of the incident.
   
6. After stopping the fight, Messrs Koni, Amosa Laufili and I met with the Police, Asila Management, Acting NAC Managing Director Mr Rex Kipong, and the NAC staff. The matter is now with the Police for further investigations. At the meeting I made it clear that Kuima security Guards at the Jackson’s Airport are not armed and did not have any firearms during the fight.
   
7. As far as I know, Kuima Security has always complied with all our Firearms conditions and this is the first time ever, without committing a breach of our Firearms conditions, that Kuima’s firearms licences are being revoked by the Police Commissioner.” The relevant documents relating were also personally served on the Registrar of Firearms on the 23^rd April 2021. Importantly this included the spreadsheet detailing out the 57 firearms issued to Kuima. Also, source documents of those Firearms noted as damaged or stolen. Kuima’s armoury keys were also handed over. And service was made upon Andrew Sterns executive officer to the Registrar of Firearms.
   
8. By section 197 of the Constitution is the functions of the Police Force to preserve peace and good order in the country, and as necessary to enforce the law and maintain it in an impartial and objective manner: In re Powers, functions, duties and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014). It means the Commissioner of Police who is also the registrar of Firearms, Section 3 of the Firearms Act, has discharged his powers under the Firearms Act and also as Commissioner of Police. The facts here show a criminal act and allegation. There is fighting and guns are discharged in the course of that fighting. Violence is exerted at a public institution and property, the International and domestic airport, seven (7) mile airport and terminal. The violence and fighting are by two Security Companies that are supposed to be providing security at the airport for the public travelling and using that facility to be kept safe and secure. Yet the fighting and violence is such that their lives, their security is threatened there and then by those who are engaged to protect them, Asila and Kuima Security Services.
   
9. The use of firearms is not a light matter whether in the hands of Asila or Kuima, the lives and limb of the travelling public and those who use that public facility is threatened from imminent danger of death or grievous harm to their life or limb. It is not only used by local travellers, but also international travellers, therefore the injury is very real to all especially from firearms that is irresponsibly discharged by those who profess to be guaranteeing safety and security, the two companies of Asila and Kuima Security Services. Therefore, the actions of the Registrar of Firearms, the Commissioner of Police is not a light matter considering. It is grave and must be addressed to point immediate safety to all regardless. The duty that is called by the Constitution section 197 is paramount, and must be carried out mandatorily with immediate, and outreaching authority. It must be laid out with precision that the safety of all must be guaranteed immediately by the officer appointed under the Constitution of the Nation, to ensure safety preservation of peace, and good order in the Country. And as far as possible to enforce the law in an impartial and objective manner to so guarantee what is called by section 197 of the Constitution. As commissioner and Registrar of Firearms, that is what he has been done here by that authority. It is not an error of law or a breach of the law pursuant.
   
10. Because a firearm licence is a guarantee of security and safety. It is upon that basis granted to the holder Kuima Security Services and Asila under the firearms Act section 9 Firearm Licences. The holder is over the age of 18 years; has not been convicted of an offence against the Act or any law; or sentenced to imprisonment; or has been convicted of an offence using firearms and sentenced to a term of imprisonment; and is not a fit and proper person to own a firearm; and can be reasonably permitted to have in his possession, to use and to carry the firearm without danger to the public safety or to the peace and has a substantial reason for requiring a firearm and the firearm is safe and fit for use. Can it be termed that Kuima Security Services is a fit and proper person to hold firearms in the way it is demonstrated here, let alone Asila Security Services for the same? Are they fit and proper persons if they do not show restraint and control as here? Could they be continued to be allowed in the manner demonstrated here?
    
11. The violence and irresponsible discharge of firearms whether by Asila or Kuima Security at a very public facility the Jackson International Airport must call for what the Registrar of Firearms and the Commissioner of Police to do what he did. He was authorized in law by the Firearms Act and the Constitution to carry out what he did. The language of the Firearms Act is explicit, the firearm cannot be guaranteed use without danger to the travelling public and those who use that facility for travel both domestically and internationally.
    
12. There is in this respect no arguable basis demonstrated that leave lies for Judicial review against the actions of the Registrar of Firearms, the Commissioner of Police in the actions that he took to revoke all firearm licences held by Kuima Security Services Limited. He has done the same for Asila leave does not lie because no arguable basis has been demonstrated to open leave for judicial review considering.
    
13. That is why it is now subjected to Police investigations. Like all it will be investigated and persons identified and charged for their actions in law. The maintenance of peace and good order means that stern decisions will have to be taken by the Commissioner of Police as registrar of firearms. And the subject criminal acts and allegations are presumably perpetrated allegedly by Kuima Security Services Limited and Asila Security Services. In the process firearms have been discharged hence the actions of the Police Commissioner to hold the arms down by revocation of the licences and detention in custody of all firearms is security safety for all public not only here but where Kuima is located country wide. The propensity for violence is there when this is a group attack and fight against two groups of security firms each, Kuima and Asila at a public facility involving so that investigations can take place. The arms are now material evidence in the investigations mounted. It would be necessary given to keep all firearms on hold so that those that were used allegedly in the allegation are identified properly. It means they are not mixed with the others also in the hands of the Kuima or Asila hence the order revoking is the beginning of the process of police investigations. The evidence in the fighting will comprise whatever weapon or firearm was discharged. The source of where it is kept must be secured off and kept at bay to guarantee that there will be no reoccurrence, and evidence will be firsthand and not tainted in the investigation primed and underway.
    
14. In this regard internal process has just begun and it will not be disrupted, the investigation are not administrative, but criminal where the police are involved and they must be allowed freedom in law to continue to discharge the call of section 197 of the Constitution, which is of the supreme Law of the land and overrides a licence revoked under section 9, 10, 12 Revocation of Firearm Licences by the Commissioner of Police Registrar of Firearms. To heed would be to breach section 197 of the Constitution and therefore it prevails because of that inconsistency section 10 and 11 of the Constitution. It means for all intent and purposes the Constitutional duty by section 197 of the Police Commissioner and Registrar of Firearms in the investigation now with him emanating from that act of violence and fighting by Kuima and Asila must be allowed to be completed. There is in this respect process of law that must be allowed to take its course without any hinderance or blockage. And that would be the case if the licences revoked are reissued back without completion of that process now underway. In this regard Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015) is very clear authority that civil proceedings will not bar what the criminal law calls. There will be no restraint in the exercise of the Constitutional role that the Commissioner of Police is carrying out here as Registrar of Firearms.
    
15. In this respect the process of law by the Constitution has not been exhausted therefore leave does not lie for Judicial review in favour of the applicant Kuima Security Services Limited or Asila in the alternative.
    
16. And in the light of all advanced the plaintiff has no standing, or locus Standi to bring the cause of action here. This is now a criminal process because investigations are now in the hands of Police. By its duty by the Constitution police will not be conducting administrative investigations, but criminal investigations which will lead to charging of suspects for various offences known to it there. It would be unlawful to stop that process by giving liberty for the evidence to be tampered with, firearms issued back to the suspects who have just used that in a group fight with another group, both organized registered into a Security firm on each end. And the fighting and discharge of firearms is not at a secluded end of town, or outskirts of the Town or city, but in the prime of the Jackson International Airport the gateway to Papua New Guinea and the World. In that sense it is prone to be accessed by all manner of people who as human beings must be protected from violence and harm by the authority of the land under its Constitution the Police Force through its Commissioner the head, who is also the Registrar of Firearms. It does not balance that his duties be left by the wayside for firearm licences irresponsibly used here. By Security firms trained to provide security with money generating by the use of firearms in their possession who cannot exercise restraint in its use. Whose location is country wide and therefore no guarantee of safety in one location but wherever they are located. Hence the speed with which to control exercised by the Commissioner of police here to curtail wherever they are located by drawing down on their arms and firearms. That process of law must be allowed in all fairness to be completed as it is by Section 197 of the Constitution. It leaves no room for grant to the plaintiff for judicial review.
    
17. The delay aspect of the principles will not matter in the light of all set out above. There simply is no room with or without that fact because the reason set out with the law in particular section 197 of the Constitution does not see well that leave be granted for judicial review in favour of the Plaintiff.
    
18. What is pleaded in the statement in support pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules that the cause of the plaintiff as being that on the 14^th January 2020, Kuima was engaged on a temporary basis by the National Airports Corporation (NAC) to provide security services at the NAC Camp 39 & 40 with deployment of 7 Static guards until further notice (First Month to Month contract). That was extended on the 1^st February 2021 to 28^th February and the scope of the services was expanded with a termination notice of 30 days (Second Month to month contract). The NAC appointed a new acting Managing Director Mr. Rex Kipong. And on Thursday 18^th March 2021 NAC gave notice to Kuima that its services were no longer required and terminated forthwith with immediate effect at 1800 on Sunday 21 March 2021. NAC had a debt of K 3, 434, 732.06 for unpaid security services. Kuima did not deploy any firearms pursuant to the First Month to Month contract. And the same was so in the second month to month contract. This pleading aggravates the cause against the plaintiff. If these were the background why resort to violence with the use of firearms. It does not weigh in favour that leave be granted for judicial review.
    
19. And that aggravation of the matter continues with the explicit pleading of that on the 22^nd March 2021 a fight broke out between Kuima static guards and Asila Security Guards at the Port Moresby (Jacksons International Airport. During the course substantial damage was done to the assets of NAC and a number of assaults occurred between Kuima static guards and Asila guards. A number of gunshots were fired during that confrontation and the shots were all fired by the Asila guards because Asila’s arms/ response unit was held there already deployed to the scene. And Kuima did not deploy and use or discharge any firearms during that day 22^nd March 2021.
    
20. This pleading is self-serving and does not disorient Kuima from what was happening there or Asila. It aggravates and will be the basis that the investigation now underway is not stopped in anyway.
    
21. This is the statement in support that is pleaded by the plaintiff but there is no evidence from the guards who were there immediately when the fight broke out. Because the Statement is only the pleading, the evidence that will support is another aspect to the case of the plaintiff. It is a pleading that is looking at one side of the case only. But it is not denied that there was a fight between the plaintiff’s guards with Asila Security Services. And that there was damage as result of it. But it denies that Kuima used and discharged guns during the fight.
    
22. After the fight was stopped Kuima met with the Police, Asila Management, Acting NAC Managing Director Mr. Rex Kipong, and other NAC staff. It was made clear during the meeting that Kuima did not excuse the behaviour of few of its staff that caused the damage during the incident. And it was committed to fully repaying all the damages caused by its guards then. And that it did not deploy, used, or discharged any firearms there. Because it never did deploy any firearms there. And the matter is with the authorities for further investigations. Kiuma will cooperate with any police investigations in the matter. This is already admission to the criminality of the act under investigation and therefore will not be a basis upon which to grant leave for judicial review. That would amount to an abuse of process and the law under the Constitution section 197.
    
23. In its cause Kuima has tendered the evidence of one Thomas Koni. He is the General Manager of Kuima Security Services Limited. He deposes to the general business of the Plaintiff. He does not lay out where the procedure has gone prima facie allegedly wrong in law and therefore review lies for judicial review. It speaks of the establishment of the Company, its growth in the security business, how it is affected because of the decision taken by the Commissioner of Police and the Registrar of Firearms to revoke its firearm licences. That because of that revocation it is unable to perform and discharge its service of the Clients it is drawn now. That without the arms it cannot guarantee the safety of the clients. In the same way it would not be doing or attending to a fight at the airport without firearms where firearms were discharged. It does not make sense to be totally unarmed coming from a security firm that has 57 firearms under licence in its name. Who it professes carries on that business serving and is naked unarmed at a scene of fighting where firearms are discharged by the other side. It does not yet there is extensive damage to property there it is supposed to protect and secure.
    
24. But even then, the matter is with authorities for further investigation. According to the affidavit of Willie Sine of Kuima Security Services Limited, Roving Security Supervisor, the matter is with Police for further investigations. If that is the case a criminal investigation is the only job that police execute.
    
25. And he has all records Annexure “K” of the affidavit of Thomas Koni sworn 20^th April 2021 filed in support of the leave application is a letter dated the 23^rd March 2021 under hand of the Commissioner of Police David P. Manning. It is subjected Revocation of Firearm Licences. It is in the following terms, I write to inform you that following the disgraceful display of violence between your company and Asila Security Services Ltd at Jackson’s Domestic Airport Terminal car park on Monday 23^rd March 2021, resulting in injuries, damage to properties and the disruption to scheduled aircraft departures, I advise that all of the Licences for firearms as listed for Kuima Security Services Ltd are hereby revoked under section 29 (v) (vii) of the Firearms Act.

Subject to section 16 of the Firearms Regulation you are required to deliver the unlicenced firearms to the Registrar of Firearms within seven (7) days of receipt of this Notice of revocation.

Failure to comply with the order will result in police conducting a search to recover the firearms and charge persons for being in possession of unlicenced firearms.

For your information a similar letter has also been delivered to the Managing Director of Asila Security Services Limited. Yours sincerely signed David P Manning MBE DPS QPM Commissioner of Police Registrar of Firearms.”

26. This letter is followed up with yet another letter, annexure “S” from the office of the Commissioner of Police dated the 14^th April 2021. The subject is revocation of Firearm Licence. The letter reads, “As above refers and I refer to your lawyers’ letter of 12^th April 2021. My previous decision in a letter dated the 23^rd March 2021 and by this letter restate below my reasons for revocation of your company’s firearm licence.

I took the action following the disgraceful display of violence between your company and Asila Security Services Ltd at Jacksons Domestic Airport terminal car park on Monday 22^nd March 2021, resulting in injuries, damage to properties and the disruption to scheduled aircraft departures. The actions were uncalled for and showed disgraceful, unprofessional, and unlawful behaviour and total contradictions to the Security Industry which advocates or promotes safety and protection of persons or property for Stakeholders and the larger community.

27. Where the play of the Constitution is involved by section 197 under hand of the Commissioner of Police the law and authorities are very explicit and clear that any other process of law will not derail that process or hinder it. Leave for judicial review does not lie given. This is not the everyday judicial review as seen in Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). This is more than that, it is a Constitutional duty under section 197 as opposed to leave for judicial review, everyday occurrence and therefore would not lie given. It is refused with costs to follow the event forthwith.
    
28. The formal orders of the court are:
    
    • (1) The originating summons for leave for Judicial review is refused in its entirety forthwith.
    • (2) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Geroro Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Defendants