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Unido v Huafolo [2005] PGNC 183; N3370 (17 June 2005)

N3370

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 172 OF 2004

BETWEEN

JOHN UNIDO
Plaintiff

AND

RAPHAEL HUAFOLO
ASSISTANT COMMISSIONER OF POLICE
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Lae: Gabi, J
2005: 23rd May
17th June

ADMINISTRATIVE LAW – Termination of attachment as legal officer and transfer of officer – No reasons given for termination – Denial of natural justice – Commissioner has power to transfer – Delegation of power – Standing Orders and Circular Instructions do not constitute delegation of power.

Cases cited

Kelly Yawip v Commissioner of Police & State [1995] PNGLR 93
Niggints v Tokam [1993] PNGLR 66
Ombudsman Commission v Peter Yama (2004) SC747

Counsel

J.Unido in person
H.Ette, for the first defendant

DECISION

17 June, 2005

1. GABI, AJ: The plaintiff is a policeman and a legal officer with the police legal services division in Lae. On 18th October, 2002, the first defendant terminated the plaintiff’s attachment as legal officer with the police legal services and transferred him to general duties at Bulolo police station.

2. By an Originating Summons filed on 8th April, 2004, the plaintiff is seeking an order by way of certiorari to quash the decision to terminate him as a legal officer and transfer him to Bulolo and a declaration that the decision to terminate him as a legal officer is void ab initio and of no effect. The plaintiff further seeks orders that he resumes as an unattached legal officer at Lae and to receive his full salary and entitlements.

3. The plaintiff relies on four (4) of is own affidavits which were sworn on 6th April, 30th April, 7th May and 10th September 2004 respectively. The first defendant contests the application. He relies on his affidavit sworn on 3rd September and filed on 6th September, 2004.

Facts

4. On 14th October, 2002, the plaintiff was served with three (3) serious disciplinary charges. These charges are subject of proceedings OS 171 of 2004. I do not intend to deal with those charges suffice to say that the plaintiff received them on 14th October, 2002. On 17th October, 2002, Mr Sam Bonner, the director of police legal services, wrote to Chief Inspector Mota requesting him to adjudicate the charges on or before 21st October, 2002. Chief Inspector Mota was the disciplinary officer. On the same day (ie. 17th October, 2002), the first defendant wrote to Mr. Sam Bonner recommending that the plaintiff be dismissed from the Police Force on all the three (3) charges. That letter was received by the office of the director of legal services and noted by a person whose initials are S.B on 25th October, 2002. I believe S.B stands for Mr Sam Bonner. On 18th October, 2002, the first defendant wrote to Metropolitan Superintendent Lae advising that the plaintiff’s attachment with the legal services division has been terminated and that he is transferred to general duties at Bulolo police station. The decision to terminate the plaintiff’s attachment with the legal services division and to transfer him was made by the first defendant.

5. The plaintiff’s case is that the first defendant had no authority to terminate his attachment as legal officer and to transfer him. Even if, the first defendant had the power, the decision was bad in law for the following reasons:

(i) That he was not invited to apply for a transfer to the general duties at the Bulolo police station, and thereby, the said decision was made contrary to s.48 of the Police Act;

(ii) There was a denial of natural justice in that he was never given an opportunity to be heard before the decision was made and that the decision is tainted with bias and activated by ill will and malice;

(iii) That the said decision was unreasonable in that there was no accommodation and no high school at Bulolo for his children attending high school. In addition, the decision was made while his application for judicial review was pending.

6. The first defendant’s case is that he had the authority to transfer the plaintiff. The basis for the authority is Standing Orders 1.122, 1.130, 4.100 and 4.102 and Circular Instruction No. 13/89.

7. The issues before me are:

1. Whether the first defendant had authority to terminate the plaintiff’s attachment as legal officer and transfer him.
   
2. If the answer to question one (1) is in the affirmative, the following questions arise:
   
   • (i) whether the first defendant failed to comply with s.48 of the Police Act;
     
   • (ii) whether the decision was unreasonable;
     
   • (iii) whether the plaintiff was denied natural justice.
     

8. The central issue is whether the first defendant had the authority to terminate the plaintiff’s attachment as legal officer with the Police Department. In cross-examination on his affidavit, Mr. Huafolo said that he transferred the plaintiff to Bulolo police station after being advised by Mr. Sam Bonner that the plaintiff was no longer attached to the legal services division. No reasons have been given by the defendants for the termination of the plaintiff’s attachment. If no reasons are given then it must be assumed that there are no reasons for such action. (Ombudsman Commission v Peter Yama (2004) SC747; Niggints v Tokam [1993] PNGLR 66; Kelly Yawip v Commissioner of Police & State [1995] PNGLR 93). I find that the first defendant had no good reason to terminate the attachment of the plaintiff as a legal officer with the Department of Police.

Transfer

9. A member may be transferred to other duties or another locality as a punishment for a disciplinary offence (s. 26(i)(e) and (f)). Secondly, a transfer may be effected to fill a vacancy (s. 46). Thirdly, for administrative and operational reasons, a member may be transferred to another location for other duties (s. 48(2) and (3)). The principles applicable to transfers and promotions are set out under s.48 of the Police Act. I set it out in full:

"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.) Whether 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 the Part, merit of a member comprises –

• (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 into the course of the member’s career;
  
• (b). the range or 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."

10. The Police Act confers on the Commissioner of Police the power to transfer. Unless the power is delegated, no one has authority to exercise the power. Section 17 provides:

"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)."

11. In his affidavit sworn on 3rd September, 2004, the first defendant deposed that he had delegated authority under s.17 of the Circular Instructions issued pursuant to s.153 of the Police Act to transfer a member within his division. Counsel for the first defendant submitted that the Constabulary Standing Orders 1.122, 1.130, 4.100 and 4.102 and the Circular Instructions No. 13/89 provide the basis for the decision to transfer the plaintiff.

He further submitted that the Standing Orders and Circular Instructions constitute delegation of powers by the Commissioner. Circular Instruction No. 13.89 reads: "In future postings and transfers will only be authorized if in accordance with the attached policies and procedures." (See annexure "B" of the first defendant’s affidavit). The policies and procedures are not before me. Standing Orders numbers 3.500 to 3.599 deal with administrative procedures for postings and transfers. I reject the argument that the Standing Orders and Circular Instructions constitute delegation. They are merely administrative and operational procedures designed to attain the objectives of the Police Act.

12. The onus is on the first defendant to prove that he had delegated authority. He has failed to do so. There is no evidence of delegation before me. No instrument of delegation done in accordance with s.17 of the Police Act had been placed before the Court. I am not satisfied that the first defendant had authority to terminate the attachment of the plaintiff as a legal officer and to transfer him to general duties at Bulolo police station. For these reasons, I make the following orders.

(1.) The first defendant acted unlawfully and the decision is quashed.

(2.) A declaration that the decision of the first defendant is ultra vires s.48 of the Police Act and is void ab initio, and of no effect.

(3.) The plaintiff is to resume his attachment to the legal services division of the Police Department as an unattached legal officer at Lae.

(4.) The plaintiff is to be placed on the payroll and be given his full salary and entitlements.

(5.) The dependants shall pay the plaintiff’s costs of the proceedings to be taxed if not agreed.

____________________________________

Plaintiff in person
Police Legal Services Division: Lawyers for the Defendants