Saumatua v Suva City Council [2016] FJHC 1080; HBC88.2012 (24 November 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 88 of 2012

BETWEEN : SETAVANA SAUMATUA of Lot 7, Niranjan Place, Namadi Heights, Suva, Barrister and Solicitor.

PLAINTIFF

A N D : SUVA CITY COUNCIL a statutory body established pursuant to the Local Government Act Chapter 125 of the Laws of Fiji, whose registered office is located at the Main Office Civic Centre, 196 Victoria Parade, Suva.

DEFENDANT

BEFORE : Justice Riyaz Hamza

COUNSEL : Mr. Isireli Fa for the Plaintiff

Mr. Devanesh Sharma for the Defendant

Dates of Hearing : 20 July 2016

Date of Ruling : 24 November 2016

RULING

INTRODUCTION AND BACKGROUND

[1] This is an application made by the Defendant, by way of an Inter Partes Summons, Seeking Leave to Appeal the Interlocutory Ruling made by this Court on 25 May 2016.
[2] The substantive application filed by the Plaintiff was by way of a Writ of Summons, together with a Statement of Claim, which was filed in Court on 27 March 2012.
[3] In the Statement of Claim the Plaintiff claims the following reliefs:

(a) Damages against the Defendant for breach of contract for the unlawful termination (as a City Lawyer) whereby the Plaintiff claims for the following:

(1) Balance of the Contract Salary as at the 8 January 2012 amounting to $92,316.00 (Ninety Two Thousand Three Hundred and Sixteen Dollars); and

(2) Balance of the Housing Allowance as at 8 January 2012 amounting to $8,809.00 (Eight Thousand Eight Hundred and Nine Dollars)

(b) Exemplary Damages against the Defendant in the manner of the abrupt, unfair, and wrongful dismissal, and for slander in the sum of $100,000.00 (One Hundred Thousand Dollars);

(c) General Damages;

(d) Costs of this action;

(e) Any other relief this Honourable Court deems just.

[4] On 10 February 2016, the Defendant filed a Summons seeking, inter alia, an Order that the Plaintiff’s action be struck out and dismissed on the basis that this Court has no jurisdiction to adjudicate upon this matter.

[5] The objection taken up by the Defendant was primarily based upon two grounds:

1. That the High Court of Fiji has no jurisdiction to adjudicate on an executive decision of the then Interim Prime Minister made pursuant to the powers given to the Interim Prime Minister under section 9A of the Local Government (Amendment) Promulgation 2008 to terminate the employment of the Plaintiff; and

2. That in accordance with Section 173(4)(d) of the Constitution no court or tribunal has the jurisdiction to accept, hear, determine, entertain or challenge any decision of a Special Administrator made pursuant to directive from the Interim Prime Minister under section 9A of the Local Government (Amendment) Promulgation 2008.

[6] This Court made Order on 25 May 2016 dismissing the said Summons for strike out.

[7] This application by way of Inter Partes Summons is an application seeking Leave to Appeal the said Interlocutory Ruling made by Court, and was filed on 13 June 2016. The application is said to be made pursuant to Order 3, Rule 4 of the High Court Rules 1988; Section 12 (2)(f) of the Court of Appeal Act (Chapter 12); Rules 4, 6, 16, 26(3), 27 & 34 of the Court of Appeal Rules; and under the Inherent Jurisdiction of this Honourable Court.

[8] The Summons was supported by an Affidavit sworn on the same day by Bijay Chand, Acting Chief Executive Officer of the Defendant, the Suva City Council.

[9] The Plaintiff filed an Affidavit in Reply, sworn on 4 July 2016.

[10] This matter was taken up for hearing before me on 20 July 2016. Both Counsel for Plaintiff and Defendant were heard. The parties also filed detailed written submissions, and referred to several case authorities, which I have had the benefit of perusing.

THE INTER PARTES SUMMONS SEEKING LEAVE TO APPEAL INTERLOCUTORY RULING

[11] As per the Inter Partes Summons Seeking Leave to Appeal the Interlocutory Ruling, the Defendant seeks the following Orders:

1. That the Defendant is granted Leave to Appeal the Interlocutory Ruling delivered by His Lordship Mr. Justice Riyaz Hamza on 25^th day of May 2016 in the High Court of Fiji at Suva on the grounds contained in the Proposed Notice of Appeal annexed to the Affidavit in Support of this Summons.
   
2. That in the event this Application for Leave or any Leave to Appeal granted by the Court is not done on or before 21 days from 25^th May 2016, then a further Order that the Defendant be granted an Enlargement of Time to file and serve a Notice of Appeal within 7 days from the date on which the said Leave to Appeal is granted.
   
3. The substantive matter in this case be stayed whilst this application for Leave to Appeal, and Appeal are heard and determined.
   
4. The Costs of this Application be costs in this cause.
   

THE PROPOSED GROUNDS OF APPEAL

[12] In the proposed Notice of Appeal annexed to the Affidavit in Support of this Summons, the Defendant has taken up the following two grounds of appeal:

1. The Learned Judge erred in fact and in law in holding that the decision made by the Special Administrator was made under the Local Government Act; and
   
2. The Learned Judge erred in fact and in law in holding that the decision that was made by the Appellant/Defendant to terminate the employment of the Plaintiff/Respondent was not a directive of the Minister for Local Government.
   

LEGAL PROVISIONS AND ANALYSIS

[13] The Defendant has filed the Inter Partes Summons pursuant to Order 3, Rule 4 of the High Court Rules 1988; Section 12 (2)(f) of the Court of Appeal Act (Chapter 12); and Rules 4, 6, 16, 26(3), 27 & 34 of the Court of Appeal Rules.

[14] During the course of the hearing, Counsel for the Defendant took up a two point argument.

1. That ALL decisions taken by the Special Administrator is statute barred under Subsection 173(4)(d) of the Constitution, when read with Section 9A of the Local Government (Amendment) Promulgation 2008; and

2. The portion subject to any general or specific directions issued by the Minister as found in the said Promulgation, in this instance, referred to two directives: (i) The directive issued to the Special Administrator by the Permanent Secretary Prime Minister’s Office, on 8 January 2010 and (ii) The directive issued to the Special Administrator by the Minister for Local Government, on 2 February 2010.

[15] For a proper understanding of this issue it is important to once again analyse Subsection 173(4) of the Constitution in its entirety. Subsection 173(4) of the Constitution is reproduced below:

(4) Notwithstanding anything contained in this Constitution, no court or tribunal (including any court or tribunal established or continued in existence by the Constitution) shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceeding of any nature whatsoever which seeks or purports to challenge or question—

(a) the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;

(b) the constitutionality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;

(c) any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, for being inconsistent with any provision of this Constitution, including any provision of Chapter 2 of this Constitution; or

(d) any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken, under any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, except as may be provided in or authorised by any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution.

[16] If the provisions of this Subsection are to be dissected it would read as follows:

1. Notwithstanding anything contained in this Constitution;

2. no court or tribunal (including any court or tribunal established or continued in existence by the Constitution);

3. shall have the jurisdiction;

4. to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy;

5. in any proceeding of any nature whatsoever;

6. which seeks or purports to challenge or question;

(a) (i) the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws),

(ii) made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution (which is the 6 October 2014);

(b) (i) the constitutionality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws),

(ii) made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution (which is the 6 October 2014);

(c) (i) any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws),

(ii) made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution (which is the 6 October 2014),

(iii) for being inconsistent with any provision of this Constitution, including any provision of Chapter 2 of this Constitution; or

(d) (i) any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken,

(ii) under any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws),

(iii) made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution (which is the 6 October 2014),

(iv) except as may be provided in or authorised by any such Promulgation, Decree or Declaration (including any provision of any such laws),

(v) made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution (which is the 6 October 2014).

[17] This Court has ruled that it is therefore clear from a plain reading of this Subsection that notwithstanding anything contained in the Constitution, no court or tribunal shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceeding of any nature whatsoever which seeks or purports to challenge or question (a), (b), (c) or (d) above.

[18] In this case the purported challenge is in respect of Section 9A of the Local Government (Amendment) Promulgation 2008.

[19] Section 9A deals with the appointment of Special Administrators to Local Government Authorities and reads as follows:

Special administrators

9A. - (1) The Minister may by order appoint two or more persons to be special administrators of a municipality for such period as the Minister may consider necessary to perform the functions of a council until the election date is determined by the Electoral Commission.

(2) The persons appointed as special administrators under subsection 1 shall be deemed to be the duly constituted council of a municipality and shall, subject to any general or specific directions issued by the Minister, have the power to perform and discharge of all the rights, privileges, powers, duties and functions vested in or conferred or imposed on the council, the mayor and any officer of the council by the Act or any other written law.

[20] It is clear from Subsection 1 that the Minister, who is named in the Promulgation as the Minister for Local Government, Urban Development and Public Utilities, has the power by order to appoint two or more persons to be Special Administrators of a Municipality for such period as the Minister may consider necessary to perform the functions of a Council until the election date is determined by the Electoral Commission.

[21] Since this tantamount to a decision made or authorised, or to an action taken by the Minister, when read with Subsection 173(4)(d) of the Constitution, no court or tribunal shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceeding of any nature whatsoever which seeks or purports to challenge or question such appointments.

[22] In terms of Subsection 9A (2) of the Promulgation, the persons appointed as Special Administrators under Subsection 1 shall be deemed to be the duly constituted Council of a Municipality and shall have the power to perform and discharge of all the rights, privileges, powers, duties and functions vested in or conferred or imposed on the Council, the Mayor and any officer of the Council by the Act or any other written law, subject to any general or specific directions issued by the Minister.

[23] The “Act” referred to in Subsection 9A (2) of the Promulgation is clearly the Local Government Act (Chapter 125). Further, it is expressly stated in the said Promulgation that the provisions thereof amends the Local Government Act (Chapter 125).

[24] It is the view of this Court that once the appointment of the Special Administrator is made by the Minister in terms of the said Promulgation, any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken by the said Special Administrator, would be made in terms of the Local Government Act. Therefore, any such decision made or authorised, or any action taken, by the Special Administrator will not be statute barred in terms of the Subsection 173(4)(d) of the Constitution.

[25] For all the aforesaid reasons, this Court cannot agree with the contention taken up by the Counsel for the Defendant that ALL decisions taken by the Special Administrator is statute barred under Subsection 173(4)(d) of the Constitution, when read with Section 9A of the Local Government (Amendment) Promulgation 2008.

[26] However, as stipulated in Subsection 9A (2) of the Promulgation, this provision may be subject to any general or specific directions issued by the Minister in charge of Local Government. Thus Court ruled that it can be argued that any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken, by the Special Administrator pursuant to any general or specific directions issued by the Minister concerned could be statute barred.

[27] In the circumstances, it is important to go through the sequence of events which transpired in the present case.

[28] On 8 January 2010, the Permanent Secretary of the Prime Minister’s Office wrote to the Special Administrator of the Suva City Council and directed that the Plaintiff, along with other employees alleged of blogging activities, were to be immediately terminated of their employment from the Council.

[29] On 14 January 2010, the Special Administrator wrote a letter to the Minister for Local Government, Urban Development, Housing and Environment seeking clarification and urging that the Plaintiff be accorded due process and natural justice and suggested an alternative to termination of her employment.

[30] On 2 February 2010, the Special Administrator received a letter from the Acting Permanent Secretary Ministry for Local Government, Urban Development, Housing and Environment stating that the Minister has directed me to inform you that it is important at this stage to adhere to the directive given by the Permanent Secretary Prime Minister’s Office in his letter dated 8 January 2010 addressed to you.

[31] Thereafter, the Special Administrator of the Suva City Council, by letter dated 4 February 2010, terminated the employment of the Plaintiff. In the letter of termination it is expressly stated as follows: “The Minister has directed me to inform you that it is important at this stage to adhere to the directive given by the Permanent Secretary Prime Minister’s Office in his letter dated 8 January 2010.”

[32] It is clearly the view of this Court that at the time, the Special Administrator was carrying out a directive given NOT by the Minister concerned, but complying with the directive given to her by the Permanent Secretary of the Prime Minister’s Office on 8 January 2010.

[33] Therefore, it is the view of this Court that the directive of the Permanent Secretary of the Prime Minister’s Office, acting on behalf of the Prime Minister, would not be caught up under the provisions of Subsection 173(4)(d) of the Constitution, as a decision made or authorised or an action taken in terms of Subsection 9A(2) of the Local Government (Amendment) Promulgation 2008.

[34] Therefore, this Court cannot agree with the contention taken up by the Counsel for the Defendant that in this instance, there were two directives: (i) The directive issued to the Special Administrator by the Permanent Secretary Prime Minister’s Office, on 8 January 2010 and (ii) The directive issued to the Special Administrator by the Minister for Local Government, on 2 February 2010.

[35] As far as this Court is concerned there is only one directive in this case, which was the directive issued to the Special Administrator by the Permanent Secretary Prime Minister’s Office, on 8 January 2010. The correspondence of 2 February 2010, cannot be deemed as a directive issued to the Special Administrator, but merely a confirmation from the Acting Permanent Secretary Ministry for Local Government, Urban Development, Housing and Environment, on behalf of the Minister, that the directive issued by the Permanent Secretary Prime Minister’s Office, on 8 January 2010, should be duly complied with.

[36] Both Counsel for the Plaintiff and Defendant addressed Court on the principles the Court should be guided by in an application for Leave to Appeal against interlocutory decisions and rulings in the course of the trial process.
[37] It is agreed that Leave to Appeal in such cases should only be granted in the most exceptional circumstances. Leave to Appeal would not normally be granted unless some injustice would be caused (in this instance to the Defendant). It is incumbent on the Defendant to establish that there is a reasonable prospect that the appeal would succeed on the proposed grounds of appeal which they are relying upon if leave were to be granted.
[38] In the instant case the Defendant has failed to establish any exceptional circumstances for the granting of Leave to Appeal. Further the Defendant has failed to establish that there is a reasonable prospect that the appeal would succeed on the proposed two grounds of appeal which they are relying upon.

CONCLUSION

[39] For all the aforesaid reasons, I am of the view that Leave to Appeal should not be granted in this case. Accordingly the application filed by the Defendant seeking Leave to Appeal should be refused.

[40] Since no Leave to Appeal is been granted, it follows that the application for the substantive matter in this case to be stayed is also refused.

[41] Accordingly, I make the following Orders:

ORDERS

1. The Inter Partes Summons filed by the Defendant seeking Leave to Appeal the Interlocutory Ruling made by this Court on 25 May 2016, is struck out and Leave to Appeal is refused.

2. The Costs of this Application shall be costs in this cause.

Dated this 24^th day of November 2016, at Suva.

Riyaz Hamza

JUDGE

HIGH COURT OF FIJI