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Kufen v Vaki [2016] PGNC 244; N6439 (4 March 2016)

N6439

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 593 OF 2014

BETWEEN

JOHN KUFEN.
Plaintiff

AND
JEFFERY VAKI
First Defendant

AND
ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Defendant

AND
THE INDEPENDENT STATE OF PAUA NEW GUINEA
Third Defendant

Popondetta: Toliken J.
2015: 20^th November
2016: 04^th March

JUDICIAL REVIEW – Application for Review – Review of dismissal of policeman – Grounds of review – Ultra vires – Power to suspend member for disciplinary or criminal charge – Vested in Commissioner for Police – Commissioner has power to delegate – Whether power delegated – Ex parte proceedings – Plaintiff must provide some proof of non-delegation beyond mere pleadings - Not open for court to hold that there was no-delegation – Police Act 1998, ss 17, 28(1), 32(1).

JUDICIAL REVIEW – Procedural and Substantive Ultra Vires – Error of law – Denial of Natural justice - Appointment of Disciplinary Officer – Powers of Disciplinary Officer – Disciplinary officer to investigate charge and presents report to Commissioner or his delegate - Disciplinary Officer functus officio after he submits report to Commissioner – Power to dismiss lies with Commissioner unless it is delegated in writing – Disciplinary officer investigating charges cannot exercise or be delegated powers to dismiss a member the subject of his investigation – Power of review of dismissal vested in Commissioner – Power may be delegated – Power to review delegated to same officer who dismissed Plaintiff – Officer did not exercise power to review until he becomes Commissioner – Disciplinary provisions under the Act – Investigatory and decision making processes kept separate – Whole process must comply with the principle of natural justice – Disciplinary Officer investigating charge dismisses Plaintiff – Usurps power of Commissioner – Decision to dismiss ultra vires the powers of the Commissioner – Error of Law committed on the face of the record – Plaintiff denied natural justice when Commissioner who in his previous capacities, investigated and dismissed the Plaintiff and ultimately refused Plaintiff’s application for review in his capacity as Commissioner – Police Act, , ss 24, 25, 26.

JUDICIAL REVIEW – Denial of natural justice – Unreasonableness – Powers of Commissioner where member suspended for criminal charge under Section 32 of Police Act – Commissioner to lift suspension upon acquittal on criminal charge - Member dismissed from Constabulary before criminal charge is finalised – Whether provision applies to member who is dismissed prior to finalization of criminal charge – Intention of provision – No dismissal before criminal charge is finalized – Lifting of suspension after acquittal has no utility if the member is dismissed before his criminal matter is finalized – Provision to be interpreted purposively to include situation where a member is dismissed before his criminal matter was finalized – Commissioner ought to have lifted suspension after Plaintiff was acquitted – Refusal to review dismissal bias and unreasonable – Police Act, s 32.

Cases cited:

Wauwia v Inguba (2013) N5232

Counsel:
L.B. Mamu, for the Plaintiff

Nil appearance, for the Defendants

JUDGMENT

04^th March, 2016

1. TOLIKEN J. The Plaintiff sought leave to review the decision of Deputy Police Commissioner Tom Kulunga (as he then was) dated the 23^rd July 2011 to dismiss him from the Royal Papua New Guinea Constabulary. (the Constabulary) I heard the application and granted leave on 24^th October 2014. On 20^th November 2015 I heard the substantive review and reserved for a date to be set in the December 2015 sittings but this did not eventuate. In all those appearances the defendants did not appear even though they were all duly served. This is my decision.
   

BACKGROUND FACTS

2. The Plaintiff had served the Constabulary for over 17 years. He joined the Constabulary on 29^th July 1993 as a Probationary Constable after graduating from the Bomana Police College on 14^th March 1993. He rose to the rank First Constable and was based at the Popondetta Police Station.
   
3. On 06^th November 2010 he was charged with one count of armed robbery contrary to Section 386 (1)(2)(a)(b) of the Criminal Code Ch. 262. It was alleged that he stole from one Menson Goume, with violence the sum of K2000 in cash, a Samsung video camera and a Nokia Mobile phone.
   
4. A day later on 07^th November 2010, the then Provincial Police Commander the late Chief Superintendant Micah Anawe, charged the Plaintiff pursuant to Section 20 (1)(az) of the Police Act 1998 (the Act) for conduct which discredited the Constabulary. And pursuant to Section 28 of the Act, the Plaintiff was recommended to be suspended with pay.
   
5. On 15^th November 2010 the Plaintiff was served his Suspension Notice by Chief Sergeant Bobby Avese. The suspension was for 21 days and took immediate effect. It was to have been lifted on 05^th December 2010 but never was lifted.
   
6. On 12th January 2011 the Plaintiff was charged by Assistant Commissioner Jim Andrews with six disciplinary offences under the Act. These were :
   1. 3 x counts of conduct prejudicial to good order and discipline in the Force (s 20 (1)(az))
      2. 3 x counts of bringing discredit to the Force (s 20(1)(az))
         
7. On 13th January 2011 the Plaintiff replied to all the charges levelled against him. Then on 14^th January 2011, as a consequence of his criminal charges the Plaintiff was further suspended by Chief Superintendant Anaiwe pursuant to Section 32 (1) of the Act. (Member charged with criminal offence) On 01^st April 2011 Chief Superintendant Anawe lifted the suspension. But then on 23 June 2011 the Plaintiff was dismissed from the Constabulary by Deputy Commissioner Tom Kulunga pursuant to Section 26 (1) (g) of the Act. (Penalties for serious offences) The Notice of Penalty under Section 26(4) of the Act was served on the Plaintiff by the Popondetta Police Station Commander Senior Inspector Noboya Zozowa.
   
8. On 02^nd August 2011 the Plaintiff applied to the Commissioner of Police for review of his dismissal pursuant to Section 26(5) of the Act. By letter of 11^th August 2011 Commissioner Anthony Wagambi advised the Plaintiff that his application had been referred to Deputy Commissioner Tom Kulunga for review pursuant to Section 26 (10) of the Act.
   
9. In the meantime the Plaintiff was going through his criminal proceedings. On 13th November 2013 he was acquitted and discharged by the National Court after a full trial.
   
10. On 14^th February 2014, the Provincial Police Commander for Oro Chief Inspector Singura recommended that the Plaintiff be reinstated to his substantive rank given his acquittal and discharge, move supported by Mr. P Ifina (Legal Officer – Southern Region) through an undated internal Minute to the Review Officer.
    
11. On the 18^th February 2014 Commissioner Kulunga advised the Plaintiff that his application for review had been considered and considered to be insufficient to warrant a reversal of the decision to dismiss him.
    
12. The Commissioner's decision being final and not subject to appeal the Plaintiff filed his application for leave for judicial review on 14^th August 2014.
    

GROUNDS FOR JUDICIAL REVIEW

13. The Plaintiff challenges his dismissal on the following grounds:
    
    1. Ultra Vires: Procedural Ultra Virus
       
       • (a) The suspension by Chief Superintendant Micah Anaiwe (PPC Oro) pursuant to Section 28(1) and Section 32(1) know the Police Act 1998 amounts to ultra vires since these provisions vests suspension powers on the Commissioner of Police’
         • (b) The dismissal of the Plaintiff by the Deputy Police Commissioner Tom Kulunga pursuant to Section 26(1)(g) of the Police Act 1998 amounts to ultra vires sincethe power to dismiss is vested on the Commissioner.
           
    2. Error Of Law
       
       • (a) The exercise of power to suspend and or dismiss by persons other than the Commissioner amounts to an error of law.
         
       • (b) The Review carried out by the Deputy Commissioner Tom Kulunga is contrary to Section 26(10) and amounts to an error of law since it was Tom Kulunga who dismissed the Plaintiff from the Force initially when this provision requires another person to review the decision and not the same officer.
         
3. Denial Of Natural Justice
   
   1. The review carried out by the Deputy Commissioner Tom Kulunga amounts to a breach of natural justice since it was reviewed by the same person who dismissed the Plaintiff initially.
   2. The Plaintiff was denied a fair hearing.
      
4. Unreasonableness/Wednesbury Principle
   
   1. The decision upon review to confirm the dismissal is unreasonable in the circumstances of the case taking into account the acquittal from the criminal charge by the National Court and various recommendations from police authority in Oro Province for reinstatement.
      

RELIEF SOUGHT

14. The Plaintiff sought the following reliefs:
    
    1. An order in the nature of certiorari to remove into this Court and quash the decision of the First Defendant in removing the Plaintiff from his position as First Constable; and
    2. An order in the nature of Mandamus requiring the First Defendant to re-instate the Plaintiff to his subst[antive] position as First Constable; and
    3. An order in the nature of Mandamus requiring the First Defendant to pay “back pay” and other emoluments lost by being unlawfully removed from the date of removal to the date of re-instatement; and
    4. Damages for mental distress and anxiety and public humiliation suffered by the Plaintiff and his family after being removed; and
    5. Costs of this application; and
    6. Such further or other orders as this Honourable Court deems fit.
       

ISSUES

15. The issues for trial are:
    
    1. Whether the Plaintiff’s suspension by Chief Superintendant Micah Anaiwe and his subsequent dismissal by Deputy Commissioner Tom Kulunga amounts to ultra vires
    2. Whether the exercise of those powers (suspension and dismissal) amounts to an error of law
    3. Whether there was a breach of natural justice in the circumstances
    4. Whether the dismissal is unreasonable taking into account that the Plaintiff had been cleared of the criminal charges
    5. Whether the plaintiff is entitled to damages for mental distress, anxiety and public humiliation.

THE LAW

16. The Police Act of 1998 (PART IV. – DISCIPLINE.) provides for the disciplinary offences and procedures for members of the Constabulary. Section 19 of the Act gives the power to the Commissioner, from time to time and at any time, to appoint commissioned officers to be disciplinary officers. This provision also provides that the Commissioner can be the disciplinary officer himself.
    
17. Section 20 provides for the disciplinary offences which include the six charges for which the Plaintiff was charged and ultimately dismissed. The provision does not specify or prescribe which of these offences are of minor or serious in nature. Rather the decision to decide whether an offence or alleged offence is minor or serious rests with the Commissioner or a disciplinary officer. (Sections 2 (1), 23(1))
    
18. The procedures for dealing with these two classes of offences are quite different. For our present purposes though we shall restrict ourselves to the procedures in respect of serious offences as it is clear that a decision had been made that the Plaintiff’s behaviour amounted to a serious offence. I set out below the relevant provisions:
    23. DEALING WITH SERIOUS OFFENCES.

(1) Where there is reason to believe that a member of the Force has committed a disciplinary offence other than an offence that is or is intended to be dealt with as a minor offence, it shall be dealt with as a serious offence.

(2) A member referred to in Subsection (1) may be charged by the Commissioner or by a commissioned officer authorized by the Commissioner to lay charges under Section 19.

(3) On a charge being laid against a member of the Force that member shall–

(a) be furnished promptly with a copy of the charge, which shall, where a member so desires, be explained to the member by a senior officer; and

(b) where the member so requests, be furnished with copies of all reports that are to be considered in relation to the charge; and

(c) be invited–

(i) to reply within 14 days, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it.

(4) A charge or other documentation is deemed to have been furnished to a member under this section–

(a) where it has been personally served on the member; or

(b) where, it being unreasonable because of distance or any other factor to serve the charge or documentation personally, the procedure set out in Section 31 has been followed.

(5) Where a reply is not given by the member within 14 days after personal service in accordance with Subsection (4)(a) or within 28 days after posting in accordance with Subsection 4(b) the member is deemed to have denied the truth of the charge and the matter shall thereupon be dealt with in accordance with Section 24.

24. DETERMINATION OF CHARGE.

(1) In any case where Section 23 applies, the Commissioner shall appoint a disciplinary officer to investigate the matter and report to the Commissioner.

(2) Where a disciplinary officer is appointed under Subsection (1) that officer shall be–

(a) a person other than the person who has charged the member; and

(b) of superior rank to the member charged.

(3) The disciplinary officer shall consider the reports relating to the charge, the reply and explanation (if any) of the member charged, and subject to Subsection (4), may consider any further reports that the disciplinary officer thinks fit.

(4) Where the disciplinary officer receives a report which was not available to the member charged at the time the member was so charged, or within seven days thereafter, a copy of that report shall be supplied to the member and the member shall have the right to reply to that report.

25. IMPOSITION OF PENALTY WHERE CHARGE SUSTAINED.

(1) After conducting an investigation under Section 24 the disciplinary officer shall furnish to the Commissioner a report advising whether in his opinion the charge has been sustained, and where sustained, what punishment is recommended.

(2) The Commissioner after considering the report referred to Subsection (1), may, where–

(a) the disciplinary officer is of opinion that the charge has been sustained; and

(b) the Commissioner concurs with that opinion,

impose a penalty (whether or not that penalty is recommended by the disciplinary officer) specified in Section 26.

(3) Where–

(a) the disciplinary officer reports that in his opinion the charge has not been sustained; and

(b) after considering the report of the disciplinary officer the Commissioner is of the opinion that the charge has not been sustained,

the Commissioner shall dismiss the charge.

(4) Where the Commissioner does not accept in the first instance that a charge is not sustained, he shall refer the matter to a disciplinary officer not connected with the first recommendation for a review and report, and the recommendation contained in the review will be accepted without further formality.

(5) Where the Commissioner imposes a penalty under Section 26(1), other than a penalty in terms of Paragraph (g) of that subsection, the Commissioner may, in addition to such penalty direct that the offending member complete a course of retraining in accordance with Section 26(2).

(6) A retraining course for the purposes of Section 26(2) shall comprise such course of training and instructions as the Commissioner determines, and may include an examination or examinations.

(7) Where, at the conclusion of such time as the Commissioner may allow, the offending member has satisfactorily completed the retraining course, and passed any examinations connected therewith–

(a) the penalty in the case of a fine, or forfeiture of pay, may, in the discretion of the Commissioner be remitted in whole or in part, and the proportion so remitted shall be repaid to the offending member; and

(b) any reduction in rank or salary may be reversed in whole or in part as from the date of satisfactory completion of the retraining course, and the passing of the examination.

26. PENALTIES FOR SERIOUS OFFENCES.

(1) Subject to Subsection (2), any one or more of the following penalties may be imposed under this Division:–

(a) a fine not exceeding K200.00;

(b) reduction of the member’s salary;

(c) forfeiture of not more than four weeks’ pay;

(d) reduction of the member to a rank having a lower classification, and to a salary within that classification;

(e) in addition to or instead of a punishment specified in Paragraph (d), the transfer of the member to other duties;

(f) in addition to or instead of a punishment specified in Paragraph (d) or (e), the transfer of the member to some other locality;

(g) dismissal of the member from the Force.

(2) In addition to any penalty imposed under Subsection (1)(a) to (f) inclusive, the Commissioner may also require the member to undergo a course of re-training.

(3) The penalty specified in Subsection (1)(f) shall not be imposed on a member of the Community Auxiliary Police or on a Special Constable.

(4) The Commissioner shall notify a member of a penalty imposed on that member.

(5) Where a penalty is imposed under this section by a disciplinary officer, the member affected may, within seven days of notification to the member under Subsection (4) of the penalty, or within such further time as the Commissioner may allow, apply in writing to the Commissioner for a review of the decision.

(6) An application under Subsection (5) for a review may be effected by–

(a) delivery in person to a disciplinary officer; or

(b) sending the application by ordinary post addressed to the Commissioner; or

(c) delivery in such other manner as may be approved by the Commissioner,

and is deemed to have been made on the day on which it is so delivered or posted.

(7) On a review under Subsection (5), the Commissioner may confirm or annul the penalty and the decision of the Commissioner is final.

(8) The Commissioner may direct that a penalty imposed under Subsection (1) by a specified rank of disciplinary officers shall not be put into execution until confirmed by him.

(9) The power conferred on the Commissioner for this section to confirm a penalty is deemed to include the power to increase or otherwise to vary the penalty in any way not inconsistent with this Act.

(10) The power of the Commissioner to delegate under Section 17 is limited for the purposes of Subsections (6) and (7) to a power to delegate to a member of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made.

....

28. SUSPENSION.

(1) Where–

(a) a disciplinary offence or suspected disciplinary offence is such; or

(b) the circumstances in which a disciplinary offence or suspected disciplinary offence are committed are such,

that the member of the Force should not continue in the performance of his duty, the Commissioner may suspend the member from duty.

(2) Suspension under Subsection (1) may be effected before, at the time of or after the laying of a charge, and may be lifted by the Commissioner.

(3) Where a charge is not sustained, the suspension shall be lifted immediately on a finding to that effect.

32. MEMBER CHARGED WITH CRIMINAL OFFENCE.

(1) Where a member of the Force is charged with having committed an offence (other than a disciplinary offence) against this Act or any other enactment, he may be suspended by the Commissioner.

(2) Unless the Commissioner otherwise directs, a member of the Force who is suspended under this section shall not receive any pay from the date on which, or for the period during which, he ceased to perform the duties of his position.

(3) The Commissioner may at any time remove the suspension of a member of the Force who is suspended under this section and shall remove the suspension where the member is acquitted of the charge which led to a suspension under this section, and is not convicted of any alternative offence.

(4) When suspension is removed under Subsection (3), the Commissioner may direct that all or any of the pay which the suspended member lost as a result of the suspension be paid to that member.

19. Let me now turn to the issues.

ISSUES

1. Whether the Plaintiff’s suspension by Chief Superintendant Micah Anaiwe and his subsequent dismissal by Deputy Commissioner Tom Kulunga amount to ultra vires or error of law
   
20. The plaintiff challenges firstly, the power of Chief Superintendant Micah Anaiwe to suspend him and, secondly the power of Deputy Commissioner (as he then was) to dismiss him from the Constabulary. His challenge is premised on the ground that neither of these officers had the power under the Act to take those disciplinary actions that they took against him. He argues that these powers are vested in the Commissioner (ss 28 and 32) and in the absence of any delegation by the Commissioner of his power to suspend specifically to these officers their actions were clearly ultra vires the powers of the Commissioner.
    
21. Section 17 of the Act provides that the Commissioner may in writing, delegate any specific power or function, all or any of his powers and functions under this Act, except the power of delegation itself.
    
22. There is no argument that the power to suspend or discipline (including dismissal) are powers that are vested in the Commissioner. There is also no dispute that the Commissioner has the power to delegate his powers under the Act to a commissioned officer in writing and for the purpose of disciplinary matters also appoint disciplinary officers and further delegate his disciplinary powers to such officers.
    
23. Hence, in the absence of a written delegation or appointment as a disciplinary officer (general or specific) no commissioned officer can simply assume any disciplinary powers of the Commissioner.
    
24. The Plaintiff alleges that Chief Superintendant Anaiwe did not have the power to suspend him. He further alleges that Deputy Commissioner Kulunga did not have the power to dismiss him. And this is because in both cases there is no written delegation of those powers to them by the Commissioner.
    
25. It is trite law that "he who asserts must prove" and if he does not then he goes away from the Court empty handed.
    
26. So has the Plaintiff proved on the balance of probabilities that Chief Superintendant Anaiwe did not have the power to suspend him and thus acted ultra vires the powers of the Commissioner? Has he proved that Deputy Commissioner Tom Kulunga on his part did not have the power to dismiss him? Has he adduced any evidence to support his assertions? The burden is on him and unfortunately I must find that he has not discharged it on the required standard. In fact he has not adduced a single piece of evidence to prove his assertion. All that is before he court are his bare assertions. There is no evidence that he did a search on the existence or otherwise of instruments pertaining to the issue at hand.
    
27. For the purpose of challenging an administrative action on the basis of ultra vires, whether substantive or procedural, the Plaintiff must do more than simply allege a breach. He must adduce some supporting evidence and particularly so when a matter is heard ex parte as in this case.
    
28. In the case at hand the delegation by the Commissioner may have been a blanket one to all Commissioned officers and not individually for all we know. Whatever the case it is incumbent upon the Plaintiff to prove that no such powers were so delegated either generally to all Commissioned Officers or specifically to the two officers in question.
    
29. On this point I make reference here to the Plaintiff's Notice of Suspension by Chief Superintendant Anaiwe dated 7/11/2010 which partly reads –

TAKE NOTICE

That I Chief Superintendant Micah Anaiwe MBE being a Commissioned Officer authorized by the Commissioner of Police to Suspend members of the Police Force under –

• Section 28(1) Division 4 of Part IV of the Police Force Act (Suspected of committing a disciplinary offence)
• Section 32(1) Division 4 of Part IV of the Police Force Act (Charged with a criminal offence)

Suspend you from duty as of 1120hrs 15 day of November 2010 for a period of 21 days.

...

30. The reference by Chief Superintendant Anaiwe to being authorized by the Commissioner to effect suspensions implies that the Commissioner had delegated that power to him. That to me clearly implies that the Commissioner had delegated his disciplinary powers to him as a Commissioned Officer. It is then for the Plaintiff to prove that he was not. The plaintiff failed to do that. It is therefore not open to me to hold that no delegation was made by the Commissioner to Chief Superintendant Anaiwe.
    
31. In respect of Deputy Commissioner Kulunga Section 26(10) of the Act clearly envisages that the Commissioner may delegate his powers under Subsection (6) (Procedure for Service of Application for Review) and Subsection (7) (Decision on Review) to an officer of equal or higher rank than that of the disciplinary officer in respect of whose decision the application for review is made. In order words the Commissioner can delegate his power of review. In the present case, did Commissioner Wagambie delegate that power to Deputy Commissioner Kulunga?
    
32. Without proof to the contrary it would appear that Deputy Commissioner Kulunga was appointed as disciplinary officer in respect of the Plaintiff’s case. The fact that he conducted the investigation to the Plaintiff's charges would support an inference that he in fact was. As such his powers are those prescribed by Section 24 and Section 25 of the Act.
    
33. Section 25 (1) provides in mandatory terms that after he had completed his investigation he shall furnish his report and any recommendations as to penalty where the charge has been sustained to Commissioner. Where the charge has been sustained, the Commissioner, if he concurs or agrees, may then impose a penalty under Section 26 (1), irrespective of whether such a penalty was recommended by the disciplinary officer.
    
34. It must be stated here that once the disciplinary officer had furnished his report to the Commissioner, he is functus officio so to speak. He no longer has anything to do with what he Commissioner decides to do after that. But what did Deputy Commissioner Kulunga do in this case? What does the documentary evidence before the court show?
    
35. What happened was that Deputy Commissioner Kulunga not only investigated the matter and found six of the eight charges against the Plaintiff proved but went further and dismissed the Plaintiff. In dismissing the Plaintiff he overstepped his powers and usurped the powers of the Commissioner. His task was to investigate and make a report to the Commissioner which report should indicate whether the charges were proved or not and any recommendation as to penalty. His dismissal of the Plaintiff was therefore ultra vires the powers of the Commissioner.
    
36. There is no question that the Commissioner can delegate his powers under Section 25 to Commissioned Officers but what seems to jump out from the disciplinary provisions under the Act is that the investigatory and decision making processes are kept separate for the simple reason that the whole process must comply with the principle of natural justice.
    
37. Section 22 (9) and 26(10) regarding the Commissioner's power to delegate his review powers on penalty for minor and serious offence bring out this point clearly - that where the Commissioner delegates his power he may delegate it only to a member or officer of equal or higher rank than the disciplinary officer appointed for a particular matter. That clearly precludes the disciplinary officer.
    
38. The challenge on the ground of ultra vires is therefore sustained.
    
39. And it should go without saying that the ground on error of law must necessarily also succeed because Deputy Commissioner Kulunga's usurpation of the Commissioner's power to dismiss the Plaintiff from the Constabulary was clearly unlawful. And it follows that whatever flowed from that unlawful act is or are similarly unlawful and of effect whatsoever.
    
40. There might therefore be no need to consider the remaining grounds (denial of natural justice and unreasonableness based on the Wednesbury principle) because of my findings above. However, if I may, I would like to say something briefly on these.
    
    2. Whether the Plaintiff was denied natural Justice and Whether the Decision of Commissioner Kulunga was unreasonable
       
41. On the ground of denial of natural justice, it is well settled that a person is entitled to be heard by an impartial tribunal. And the constitutional imperative for this right is Section 52 (2) of the Constitution which provides that "The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly." In other words "justice must not only be done but also be seen to be done." So was the Plaintiff accorded natural justice? In particular was he heard by an impartial arbitrator?
    
42. The answer is a simple straight NO! His application for review of his dismissal was received by the incumbent Commissioner Anthony Wagambie. On 11th August 2011 Commissioner Wagambie advised the Plaintiff that his application had been referred to Deputy Commissioner Administration - Tom Kulunga - to review. How this could have happened, given the fact that it was Tom Kulunga in his capacity as disciplinary officer who dismissed the Plaintiff is hard to fathom when Section 26(10) clearly precludes the delegation of review powers to the disciplinary officer who dealt with the matter under review. As it happened Tom Kulunga did not deliberate on the review until he himself become Commissioner.
    
43. By letter dated 18th February 2014 Commissioner Kulunga advised the Plaintiff that his application for review had been considered (by himself it appears) and refused. This was some three months after Plaintiff was acquitted from his criminal charges on 13th November 2013, against strong recommendations for reinstatement from PPC- Oro, Chief Inspector Jacob Singura and Chief Inspector P. Ifina (Legal Officer). Commissioner Kulunga did not recuse himself from hearing the review. Nor did he avail himself to Section 26 (10) by delegating the power of review to another officer below him. There is then an irrefutable apprehension of bias against him. Under the scheme of things under the Act he simply could not have reviewed his own decision. The Plaintiff was therefore denied natural justice.
    
44. Now to the ground of unreasonableness based on the Wednesbury principle. The Plaintiff argues that Commissioner Kulunga's decision in confirming his earlier decision to decision to dismiss him for the Constabulary was unreasonable when seen against the fact that he had been exonerated from his criminal charges. I find some substance in this argument but perhaps Commissioner Kulunga's refusal to reinstate the Plaintiff after his acquittal may also be defeated by Section 32 (3) of the Act which provides –
    
    32. MEMBER CHARGED WITH CRIMINAL OFFENCE.

(1) ...

(2) ...

(3) The Commissioner may at any time remove the suspension of a member of the Force who is suspended under this section and shall remove the suspension where the member is acquitted of the charge which led to a suspension under this section, and is not convicted of any alternative offence. (Emphasis added)

(4) ...

45. Now, that provision applies to suspension of members of the Constabulary who are charged with criminal offences as was the case here. On its literal construction it would appear to preclude a case where the member had been dismissed for the Constabulary before the determination of his criminal charge. However, the intent of the provision seems to be that members who are charged with criminal offences remain suspended and not dismissed before their criminal matters are finalized. Hence where they are acquitted the Commissioner is obligated in mandatory terms by the use the word "shall" to lift the suspension.
    
46. The lifting of a suspension after acquittal has no utility if the member is dismissed before his criminal matter is finalized. The provision must therefore be interpreted purposively to include a situation where a member is dismissed before his criminal matter was finalized as was the case here. That being the case the Commissioner had no option but to reverse his decision to dismiss the Plaintiff. However, he did not because he obviously had prejudged the Plaintiff and displayed apparent bias in the circumstances and in so doing he acted unreasonably.

ORDERS

47. For the above reasons I uphold the application for judicial review and declare the decision of the Deputy Police Commissioner Tom Kulunga (as he then was) to dismiss the Plaintiff from Constabulary null and of no effect and I grant an order in the nature of certiorari quashing the decision to remove the Plaintiff from the Constabulary. And I further grant an order in the nature of mandamus requiring the Commissioner of Police to reinstate the Plaintiff to his original rank of First Constable.
    
48. Now to the Plaintiff's claim back payment of salaries and other emoluments from the date of dismissal to the date of reinstatement, I would like to take the same approach that taken by my brother Makail J took in Wauwia v Inguba (2013) N5232. The Plaintiff in instant case was dismissed on 23rd June 2011 some 4 years and 7 months ago. That is a period in which the Plaintiff was not rendering any service to his employer the State. To accede to his claim would amount to unjust enrichment. The Plaintiff does not say what other emoluments he is entitled to apart from his salary. Whatever they are they would most probably accrued by reason of active duty and hence he should not be entitled to them if any at all. He would therefore be entitled to his salary on. In the circumstances, the Plaintiff should be entitled to his salary starting from the date of his acquittal from his criminal charges by the National Court on 13th November 2013.
    
49. I therefore further grant orders in the nature of mandamus ordering that the Police Commissioner back pays the Plaintiff's salaries from the date of his acquittal from his criminal charges by the National Court on 13th November 2013 to the date of reinstatement.
    
50. And finally to the Plaintiff's claim for mental distress, anxiety and public humiliation. While the plaintiff is allowed by Order 16 r 7 of the National Court Rules to claim damages I will in my discretion decline to grant any orders in this regard in the absence of proper pleadings and supporting evidence.
    
51. Costs are in the cause which shall be taxed if not agreed.

Ordered accordingly.
_____________________________________________________________ -----
The Public Solicitor : Lawyer for the Plaintiff

The Solicitor General : Lawyer for the Defendants