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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.197 of 2014
BETWEEN:
JOE LEODORO
ROY SEULE
MICHEL BULEBAN
Claimants
AND:
REPUBLIC OF VANUATU
Defendant
Coram: Mr. Justice Oliver A. Saksak
Counsel: Henzler Vira for Claimants
Kent.T.Tari for the Defendant
Date of Hearing: 10th March 2015
Date of Judgment: 3rd November 2015
JUDGMENT
Introduction
The Issues
The Claims
| (a) | Joe Leodoro |
| VT 1.542.636 |
| | |
| VT 229.473_ |
| | | Total | VT 1.772.109 |
| | | | |
| (b) | Roy Seule |
| VT 4.835.688 |
| | |
| VT 135.984_ |
| | | Total | VT 4.971.672 |
| | | | |
| (c ) | Michel Buleban |
| VT 2.044.440 |
| | |
| VT 135.984_ |
| | | Total | VT 2.180.424 |
6.1. As regards Joe Leodoro, First Claimant-
- 1st December 1988- Promoted to Lance Corporal
- 1st March 1991- Promoted to Corporal
- 1st November 1993 – Promoted to Sergeant
- 15th November 1996 – Promoted to Second Lieutenant
- 17th December 2004 – Promoted to Lieutenant
- 17th October 2008 – Promoted to Captain
Particulars of Acting in Vacant Posts
6.2. As regards Roy Seule, Second Claimant-
- December 1985 – Promoted to Lance Corporal
- 1stAugust 1986 – Promoted to Corporal
- 1st February 1992 – Promoted to Sergeant
- 1st January 1996 – Promoted to Warrant Officer Class 2
- 2000- Promoted to Second Lieutenant
- 2003- Promoted to Lieutenant
Particulars of Acting in Vacant Posts
6.3. As regards Michel Buleban, third Claimant-
- 9th May 2003 to 3rd January 2005 and 28th June 2006 to 15th May 2008, he was posted as JPOC Intelligence Officer for a period of 5 years, 8 months and 3 weeks.
- 28th August 2012 the Police Commissioner wrote a letter to the Corporate Services instructing them to pay the allowances of the third claimant but nothing was done.
6.4. These facts are not in dispute
The defendant filed a Defence on 24th September 2014 denying that-
8.1. The Claimants relied on their evidence by sworn statements filed on 2 June 2014. And the defendant relied on the sworn statement of Willie George filed on 26th September 2014. By Consent of all Counsel all sworn statement were admitted into evidence without cross-examination. References will be made to relevant parts of those evidence in the discussions of issues.
9.1. Section 6 of the Police Act provides for general powers of the Police Commissioner as follows:-
"(1) The Commissioner shall have the command, superintendence and direction of the Force and, subject to the provisions of this Act and to the general directions of the Minister may –
(a) make such appointments, promotions and reductions in rank in respect of all subordinate officers as he may consider fit; and
(b) make Force Orders for the general government of members in relation to their enlistment, discharge, training, arms, clothing, equipment and other appointments and particular services as well as their distribution and inspection and other such orders as he may deem expedient for preventing neglect and for promoting the efficiency and discipline of all members.
(2) Any act or thing which may be done, ordered or performed by the Commissioner, may with the authority of the Commissioner be done, ordered or performed by a senior officer." ( emphasis added)
9.2. Section 7 of the Police Act provides for officer in charge of Police as follows:
"(1) The command and control of any particular unit of the Force in any place shall be vested in such member as may be appointed by the Commissioner to be in charge thereof. Any member so appointed shall be an officer in charge of police for the purposes of this Act.
(2) An officer in charge of police shall be subordinate to and carry out the orders of the Commissioner in all matters connected with –
(a) the discharge of the general functions of the Force as provided by section 4; and
(b) the discipline, training, promotion and welfare of all members under his command.
(3) .................... N/A
(4) ..................... N/A" (emphasis added)
9.3. Section 10 of the Police Act provides for Appointments as follows:-
"(1) Senior Officers, other than the Commissioner and any Deputy Commissioner, are to be appointed by the commission, acting on the recommendation of the Commission.
(2) Subordinate officers and constables shall be appointed by the Commissioner." (emphasis added)
9.4. Section 20 of the Police Act provides for appointment of officers from within the Force as follows:-
"(1) Subject to the provisions of section 21, appointments of subordinate and senior officers shall be made by promotions from within the Force having regard to –
(a) the individual merit of each candidate based on his ability, efficiency, powers of leadership, conduct and character;
(b) his length of service and seniority in his rank, and
(c) any written form of testing or examination that the Commissioner may consider necessary."
( emphasis added)
9.5. Section 23 of the Police Act provides for Postings and transfers as follows:-
"(1) In this section the word, "post" means a particular police function and does not imply a police rank.
(2) Subject to the provisions of section 10, a member shall serve in such post and in such place within Vanuatu as the Commissioner may, in the interests of the Force, decide."
9.6. Section 201 of the Police General Orders 1993 [PGO) provides for Allowances and when payable as follows:
"An acting allowance is an allowance for which an officer is eligible when he is appointed to act in a post in accordance with PGO B1101". (emphasis added)
9.7. Section 202 provides for Method of Calculation as follows:
"(1) Where an officer is appointed to act in a prescribed duty post and is assuming the full duties and responsibilities of that post, he shall be eligible to be granted an acting allowance of the difference between his substantive salary and the minimum salary of the scale of the post in which he is acting.
(2) Where an officer is appointed to act in a prescribed duty post and is not assuming the full duties and responsibilities of that post, he may be eligible to be granted an acting allowance at such rate as may be decided by the Commissioner if Police in the case of a Subordinate officers post or the Police Service Commission in the case of a senior officer post.
(3) When an officer is acting in the post of another officer of the same grade or rank, or in a duty post which has not been prescribed, he shall not be eligible to receive any acting allowances."( emphasis added)
9.8. Section 203 provides for period during which the allowance is payable as follows:-
"An acting allowance shall begin on the date the officer appointed to act assumes the functions of the higher office and shall cease on the date on which he relinguishes such functions." ( emphasis added)
9.9. Section 204 provides for Qualifying period as follows:
"Subject to the provisions of PGO B11O2 an acting allowance is not payable unless the appointment to act exceeds 30 consecutive days when the allowance becomes payable for the whole period of the acting appointment."
9.10. Section 205 provides for Limitation as follows:
"An acting allowance may not be paid for a period in excess of 6 months from the date of its commencement unless and until the appointment has been reconsidered by the commissioner of police or the police service.
Commission and extended in terms of PGO B1105."
(emphasis added)
9.11. Section 1101 of the PGO provides for when Appointments to act may be made as follows:
" An appointment to act in an office is an appointment of a temporary nature made under the provisions of the Police Act and Staff Manuel, and may be made by the Commissioner of Police in the case of subordinate officers and the Police Service Commission in the case of senior officers ( hereinafter referred to as the " appropriate
authority") when an office is vacant or when for any reasons the substantive holder of the office cannot exercise the functions of the office
and it is necessary that those functions should be exercised."
(emphasis added)
10.1 First on the issue of whether the limitation period in the Employment Act [CAP.160] apply to the entitlements being claimed by these three claimants.
10.2. The State's position on this issue is not consistent. First, from their defence filed on 24th September 2014 as amended on 7th November 2014, the State is relying on the 6 years limitation period under section 3 of the Limitation Act and argues that for periods prior to 2nd June 2008 these are time-barred. Second, in their written submissions filed on 22nd June 2015 the State argues that the limitation period of 3 years stipulated in section 20 of the Employment Act [CAP.160] is applicable and as such all the claims of the claimants are statute- barred. They rely on the case authorities of PSC.v.Tari[ 2008] VUCA 7 and Wabak .v. Commissioner of Police [ 2009] VUSC, CC 17 of 2007.
10.3. Both case authorities cited support the Court's view that the limitation period applicable to these claims is the 3 years period under section 20 of the Employment Act.
10.4. Therefore, are the claims of the claimants statute-barred?
The answer is both in the negative and in the affirmative. The cut-off date has to be in the view of the Court, the year 2000 for Joe Leodoro and Michel Buleban. Any claims for allowances and increments prior to the year 2000 are statute-barred. But for claims by Roy Seule the cut-of date is 1984. Any claims prior to 1984 are statute-barred.
10.5. The evidence of Willie George filed by the defendant discloses a letter dated 10 August 2012 written by Joe Leodoro to the Acting Commissioner of Police. (See Annexure WG15). It is intituled"Acting Appointment/ Allowances – Captain Joe Leodoro". The first paragraph states:
"In 2005 when I was in Santo I applied for acting allowances, but nothing were done, and again in 2010 and in April 2012 but nothing. The acting appointment for acting allowances continues bothering and demoralizing, in fact other officers are very fortunate regarding allowances. Attached are copies of relevant appointments and other supportive documents...." (emphasis added).
10.6. Joe Leodoro (first claimant) also wrote letters on 10th August 2012 concerning the same subject- matter on behalf of Lieutenant Fred Roy Seule and Senior Inspector Michel Buleban(Second and Third Claimants).
10.7. From the evidence before the Court it is the opinion of the Court that the relevant periods for which the three claimants held posts an acting basis for which they were and are entitled to acting allowances and increments are-
(a) For Joe Leodoro-
- (i) From 1st December 2000 to 3rd June 2003
- (ii) From 6th November 2003 to 22 November 2003 ( 17 days)
- (iii) From 24th November 2003 to 16 December 2004. ( 1 year and 7 days)
- (iv) From 17th December 2004 to 31st December 2004 ( 17 days)
- (v) From 1st July 2006 to 17th June 2007 ( 11 months and 17 days)
- (vi) From 18th June 2007 to 16th October 2008 ( 1 year and 4 months)
(b) For Roy Seule-
- (i) From 1 January 1987 to 30th October 1988 ( 1 year and 9 months)
- (ii) From 30th October 1988 to 15th October 1989 ( 12 months)
- (iii) From 15th February 1992 to 14th February 1995 ( 46 months)
- (iv) From 1st January 2003 to 1st August 2005 ( 31 months)
(c) For Michel Buleban
(i) From 9th May 2003 to 3rd January 2005
(ii) From 28th June 2006, and
(iii) From 15th May 2008
(5 years and 8 months and 3 weeks)
10.8. From the evidence of Joe Leodoro there is a probability that from 2005 the Police Commissioner was on notice and aware that there were outstanding claims for acting allowances not only by this claimant but by other police officers including Roy Seule and Michel Buleban.
10.9 The evidence of Roy Seule shows that applications for acting allowances were made on 1st January 1987 for the period from 1st January 1987 to 30th October 1988(Annexure RS1) and on 30th October 1988 for the period from 30th October 1988 to 15th October 1989. There is no evidence in rebuttal that these were and have been paid by the defendant.
10.10. There is concession by the defendant that Joe Leodoro was entitled to acting allowances for acting as Troop Commander North from 1st January 2006 to 31st December 2006 and that VT 272.621 were paid in respect to this. But there is no evidence that the allowances for the other periods this claimant was acting were paid. And there is no evidence that the acting allowances of Roy Seule and Michel Buleban and their increments have been paid by the defendant. In actual fact Michel Bule ban's claims do not include increments but only claims for acting allowances.
10.11. I am therefore of the firm view that when Joe Leodoro had written to the Police Commissioner on 10th August 2012 but reminding the Commissioner about his original action back in 2005 relating to his outstanding acting allowances from December 2000 to June 2003, he was within the 3 year period required under section 20 of the Employment Act. The same applies to Michel Buleban's claims for 2003. For Roy Seule he applied for acting allowances in 1987 and 1988. Having done so, he was acting within the 3 year period required by section 20 of the Employment Act.
10.12. The failures to act appropriately laid with the appropriate officers within the Police Force and not with the claimants. Therefore to disqualify their lawful entitlements for failures which were not theirs would be grossly unfair to the claimants.
11. I now consider the second issue of whether the claimants are entitled to acting allowances under section 23 of the Police Act.
11.1. The State argues in their written submissions that section 23 of the Police Act does not afford any entitlements to acting allowances to the claimants because of the wording of subsection 1 which defines " post" to mean " a particular police function and does not imply a police rank."
What this means in essence is that a particular police function (within a certain post) can be occupied and that function can be performed by an officer who does not have the rank equivalent to that function or "post".
Let us take as an example the case of Joe Leodoro. According to the evidence which is not in dispute, on 24th November 2003 his rank was Second Lieutenant. The post of Platoon Commander SRF, Santo Detachment was vacant and needed to be filled temporarily. This was and is a post that should normally be occupied by a Captain. Joe Leodoro was appointed to fill such a post. He remained in that post for 1 year and 7 days.
11.2. What that posting entailed was that Joe Leodoro a Second Lieutenant in rank was performing the duties of a Captain for 1 year and 7 days. The question is was he entitled to be paid acting allowances? The answer must be in the affirmative because section 23 would make little or no sense at all, and it would be grossly unjust and unfair to the officers of lower ranks to occupy "posts" normally occupied by officers of equivalent ranks to perform the duties of those posts without being recompensed for the performance of those functions.
11.3. Section 23 cannot and must not be read in isolation. It must be read together with the Police General Orders of 1993 which were promulgated by the Police Commissioner pursuant to section 6 (1) (b) of the Police Act.
11.4. Section 201 of the Police General Orders 1993 defines clearly what and when an acting allowance is payable. It states that it is an allowance for which an officer is eligible and entitled "to when he is appointed to act in a post in accordance with PGOB1101". (emphasis added).
11.5. Section 1101 is quoted in paragraph 9.11 on page 8 of this judgment and it is not necessary to restate it here. It suffices to say that the postings of the three claimants were made in accordance with section 23 and section 10(2) of the Police Act and Sections 201, 202, 203, 204, 205 and 1101 of the Police General Orders. These were lawful postings and appointments made by the Commissioner of Police. Some of the appointments were lawfully made by the Police Service Commission. But all appointments and postings of these three claimants were lawfully made. And as such they were and are entitled to be paid their acting allowances.
11.6. When the Police Commissioner wrote on 28th August 2012 instructing the Commander of the Corporate Services Unit to check and verify records and to " ensure they are paid forthwith and not later than the 30th of November 2012"( emphasis added), it was a tall order. But there is no evidence that it was done for claimants Roy Seule and Michel Buleban. It is accepted by the Court that Joe Leodoro has been paid VT 272,621 on 23rd December 2012 but this was in relation only to the period of January 2006 to December 2006. There are other periods for which the State has no evidence that Joe Leodoro has been paid.
11.7. Further when the Police Commissioner instructed for immediate payments of allowances in August 2012, it runs contrary to the arguments and submissions of the State that these claimants are not entitled to their acting allowances. And those arguments are rejected as untenable.
12. Increments
12.1. Finally on the issue of increments, it is clear from the evidence and pleadings that Michel Buleban has no evidence showing any increments. Only Joe Leodoro and Roy Seule have produced evidence showing increments.
12.2. Their evidence show clearly that they both have approved increments but there is no evidence that these have been paid.
12.3. For Joe Leodoro his increments for the years 2000, 2001, 2002, 2005, 2006, 2007 and 2009 were approved by the Police Commissioner on 5th April 2013. But there is no evidence that these have been paid. And for Roy Seule his increments for 2001, 2002, 2003, 2004, 2006, and 2007 were approved again by the Police Commissioner on 5th April 2013. But there is no evidence that these have been paid. The amounts of increments claimed by Joe Leodoro is VT 229, 473 and by Roy Seule is VT 135.984. These amounts are not challenged or rebutted by the State.
13. Amounts of Acting Allowances
13.1. The claimants have annexed their breakdown of acting allowances in their sworn statements as follows:-
(a) Joe Leodoro- See Annexure JL5:
(i) As Second Lieutenant acting in Senior Inspector's position
U3.7 – VT 100.068 and U 4.3 – VT 116.296
Difference = VT 16.228 x 41 months= VT 665, 348
(ii) As Second Lieutenant acting in Captain's position
U3.7 VT 100,068 and U5.0 VT 135.228
Difference = VT 35,160 x 12 months = VT 421, 920
(iii) As Second Lieutenant acting in Captain's position
U4.3 VT 116, 296 and U5.0 VT 135.228
Difference = VT 18,932 x 24 months = VT 454, 368
Total = VT 1,542,636.
(b) Roy Seule – See Annexure RSJ
- (i) Corporal acting in Lieutenant's position
U1.8 VT 48,682 and U 4.3 VT 116.296
Difference = VT 67,614 x 34 months = VT 2,298, 876
(ii) Sergeant acting in Warrant Officer's position
U2.4 VT 64, 910 and U3.0 VT 81.136
Difference = VT 16,226 x 46 months = VT 746,396
(iii) Sergeant acting in Lieutenant's position
U2.4 VT 64,910 and U4.3 VT 116, 296
Difference = VT 51, 386 x 12 months = VT 616, 632
(iv) Lieutenant acting in Major's position
U4.3 VT 116, 296 and U5.7 VT 154, 160
Difference = VT 37, 864 x 31 months = VT 1, 173, 784
Total = VT 4, 835, 688
(c ) For Michel Buleban
(i) As Senior Inspector acting as Chief Inspector for 2003 to 2012 on scale U 4.3 VT 116,296 and U5.0 VT 135, 226.
Difference = VT 18, 930 x 12 months= VT 227, 160 x 9 years =
VT 2, 044, 440
13.2. I find there is no evidence by the defendant challenging or rebutting these calculations and amounts.
14. Conclusions
14.1. Applying the law therefore to the facts, I conclude that the claimants have proven their claims on the balance of probabilities.
14.2. Accordingly I enter judgment in favour of the three claimants as follows:-
| (a) | Joe Leodoro | |
| | Outstanding Acting allowances | VT 1.542.636 |
| | Less Payments Received | VT 272. 621 |
| | | VT 1.270.015 |
| | Plus Increments | VT 229, 473 |
| | Total | VT 1.499.488 |
| | | |
| (b) | Roy Seule | |
| | Outstanding Acting Allowances | VT 4.835.688 |
| | Increments | VT 135.984 |
| | Total | VT 4.971.672 |
| | | |
| ( c ) | Michel Buleban | |
| | Outstanding Acting Allowances | VT 2.044.440 |
| | Increments | Nil |
| | Total | VT2.044.440 |
14.3. The claimants have claimed interest at 5% per annum. These claims are not challenged by the defendant. The Court is of the opinion that the claimants are entitled to interests but this will be reduced to 3% per annum commencing from 2012 to 2015 being the date of judgment. The Police Commissioner gave clear instructions by his letter dated 28th August 2012 that any payments due should be made by 30th November 2012. Nothing was done. Therefore interests accrued from that year for 4 years so that the claimant's interests are calculated as follows:-
| (a) | Joe Leodoro | VT 1,499,488 x 3 | = VT 44,984 x 4 | VT 179.938 |
| | | 100 | | |
| | | | | |
| (b) | Roy Seule | VT 4,971,672 x 3 | = VT 149, 150 x 4 | VT 596,600 |
| | | 100 | | |
| | | | | |
| (c ) | Michel Buleban | VT 2, 044, 440 x 3 | VT 61,333 x 4 | VT 245, 332 |
| | | 100 | | |
14.4. These interests are added to the principal amounts claimed and summarised as follows:-
| (a) | Joe Leodoro- | |
| | Principal sum claimed | VT 1,499, 488 |
| | Interests | VT 179, 938__ |
| | Total | VT 1, 679, 426 |
| | | |
| (b) | Roy Seule- | |
| | Principal Sum claimed | VT 4,971, 672 |
| | Interests | VT 596, 6000 |
| | Total | VT 5,286, 772 |
| | | |
| ( c ) | Michel Buleban | |
| | Principal sum claimed | VT 2, 044, 440 |
| | Interests | VT 245, 332 |
| | Total | VT 2, 289, 772 |
14.5. The claimant's claims for general damages are declined.
14.6. The claimants are entitled to their costs of and incidental to this proceeding on the standard basis as agreed or determined by the Master.
DATED at Port Vila this 3rd day of November, 2015
BY THE COURT
OLIVER.A.SAKSAK
Judge
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