Ronia v Attorney General [2017] SBCA 4; SICOA-CAC 30 of 2016 (5 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (FAUKONA PJ)
COURT FILE NUMBER	CIVIL APPEAL CASE NO. 30. OF 2016. (ON APPEAL FROM HIGH COURT CIVIL CASE NO. 207 OF 2014)
DATE OF HEARING	1 MAY 2017
DATE OF JUDGEMENT	5 MAY 2017
THE COURT	GOLDSBROUGH P WARD JA WILSON JA
PARTIES:	EDWARD RONIA -v- ATTORNEY GENERAL (Representing the Public Service Commission)
ADVOCATES: APPELLANT: RESPONDENT:	MR M PITAKAKA MR S BANUVE
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1-8

JUDGMENT OF THE COURT

1. The appellant was appointed as Auditor-General on 1 May 2009 but it was not until 15 February 2011 that he signed a written agreement of service for a term of five years from 1 January 2010. The position of Auditor-General is a constitutional office and he was appointed under section 108 by the Governor General acting on the advice of the Public Service Commission (PSC).
   
2. Section 129 provides for the tenure and removal from office of some specified public officers, including the Auditor-General, and subsection (2) provides:
   

“(2) Subject to the provisions of this section, a person to whom this section applies shall vacate his office when he attains the age of fifty-five years:

Provided that the Governor-General may permit a person to whom this section applies who attains the age of fifty five years to continue in office until he has attained such later age as may have been agreed between the Governor General and that person.”

3. The appellant would reach the age of fifty-five years on 7 July 2012 and was thus 53 years old at the time of the agreement of service. On 30 May 2011, the year immediately preceding his fifty fifth birthday, he wrote to the Public Service Commission reminding them that he would turn fifty-five the following year and setting out the terms of the proviso to section 129(2). The letter continued:
   

“By this letter I am seeking your recommendation to the Governor General to permit me to hold the Office of the Auditor General until my current contract expires on 31 December 2014.”

4. The appellant received no written response but claimed that the Chairman of the PSC and the Permanent Secretary of the Public Service both orally advised him that he would remain as Auditor General for the full term of his agreement of service. He heard nothing more and was not asked to vacate his office. For all purposes he continued in the position of Auditor General discharging the duties of the office. This continued until he received a letter dated 15 November 2013 from the Permanent Secretary to the Ministry of the Public Service and addressed to him in the Auditor General’s office:
   

“ Dear Edward Ronia Esq.

RE VACATION OF OFFICE OF AUDITOR GENERAL

This is to inform you that H.E. Governor General has issued a directive through the Public Service Commission (the Commission) that your continuing occupancy of the position of Auditor General is unconstitutional.

It is for that reason that the Commission has directed me to convey to you that you are to vacate office with immediate effect.

In the meantime the Commission and the Ministry of the Public Service will continue to pursue the intention to facilitate your contract for another term.

Yours respectfully,”

5. On 9 July 2014 the appellant commenced Category C proceedings for judicial review of the Public Service Commission’s decision to terminate his appointment. He sought a quashing order of the PSC’s decision, a declaration that his appointment was never revoked so his contract of employment was still effective, damages for breach of contract, an order for exemplary and aggravated damages and costs.
   
6. The first paragraph of the claim sought leave to make the claim out of time. There was no formal application for leave and no leave was apparently granted. Mr Pitakaka, for the appellant, advised this Court that the case simply proceeded to trial under rule 15. He stated that, in the light of the first paragraph of his claim he and, it would appear, counsel for the respondent, assumed that, in some way, leave must have been granted.
   
7. A defence had been filed on 5 August 2014 and, although there is no record of it in the appeal book, counsel’s submission refers to a conference having been held under Rule 15.3.16 on 11 November 2015.
   
8. The hearing of the claim was before Faukona J on 5 August 2016 and his judgment was delivered on 30 September 2016 dismissing the whole claim with costs.
   
9. Notice of appeal was filed on 31 October 2016 on six grounds. The grounds are lengthy and it is not necessary to set them out in full. Grounds 2 to 6 challenge the manner in which the appellant was allowed to continue in office after he had reached 55 years and the manner in which he was later told to vacate his office.
   
10. The appellant’s submissions suggest that the ‘directive’ referred to in the letter of 15 November 2015 was an unlawful reversal of power. It is contended in ground 1, that, although the Governor General is the appointing authority, section 31 means that the decision maker is the PSC because it advised the Governor General to act in a way which complied with that advice.
    

11. Section 31 (1) of the Constitution provides:

“31 - (1) In the exercise of his functions under this Constitution or any other law, the Governor General shall act in accordance with the advice of Cabinet or of a Minister acting under the general authority of the Cabinet except in cases where he is required by this Constitution to act in accordance with the advice of, or after consultation with, any person or authority other than the Cabinet or in his own deliberate judgment.”

In addition, Section 129 (7) provides in respect to the Auditor General:

“(7) ...the functions of the Governor General under this section shall be exercised by him -

(a) in relation to the office of the Auditor General, in accordance with the advice of the Public Service Commission”

12. The judge, when dealing with the issue of whether the PSC was the right party to sue took the opposite view:
    

“My interpretation of Section 31(1) is that the Governor General must act in accordance with the advice of the Cabinet or the Minister acting under the authority of the Cabinet. However, it is an exception which requires the Governor General whether to act on the advice of other persons or authority as required by the Constitution. In other words, in such circumstances the Governor General is not obliged to exercise that function in accordance with the advice of that person or authority, he has discretion, whether to act on such advice or not, depending on his own deliberate judgment.”

13. It is clear that, as the appellant contends and the respondent accepts, the learned judge was wrong in that interpretation of the meaning of sections 31(1) and 129 (7).
    
14. The relevance of the right of the Governor General to act in his own deliberate judgment arose in the judge’s consideration of whether the Governor General should have been joined as a party. However, as will appear later in our findings, the issue is not whether or not the Governor General has the right to act in his own judgment. The real thrust of the appellant’s case is that the Governor General’s intervention was improper because the PSC took his advice instead of making the decision itself and requiring the Governor General to act in accordance with it. A basic issue in this case was whether or not a ‘directive’ was issued by the GG and, if so, whether such a direction was a proper use of his powers and whether the PSC acted in obedience to it.
    

15. The judge put it this way:

“The directive which might have probably be given to the Public Service Commission prior to the letter by the Permanent Secretary, cannot be construed as demonstrating wrongful reversal of power, in that it appears to convey the Governor General was advising the Public Service Commission to terminate the appointment of the Claimant.

However, I am persuaded to construe the letter properly. In paragraph (1) which the claimant said the GG actually gave directives, therefore reverse the power in section 129(2) of the Constitution. In my humble opinion, if there was indeed a letter of directive from the Governor General (no such letter was exhibited), the paragraph merely was reminding the Public Service Commission that the claimant by continuing occupying the position as Auditor General after attaining the age of 55 years, is unconstitutional. At the same time if the directive was intended to be read by the claimant, also reminded him that occupying the post of Auditor General whilst his age had gone beyond 55 years was not allowable under the Constitution.

In paragraph 2 the claimant was informed to vacate office immediately while the Commission and the Ministry of Public Service pursue the intention to facilitate his contract for another terms. Whether the facilitation was done or not, was an impression which is subject to inquiry, and this court is not informed of any progress.”

16. The appellant’s difficulty lay in its failure to produce any evidence of the nature or terms of the directive apart from the mention in the letter of 15 November 2015. In the absence of any such evidence the judge was not persuaded.
    
17. What the letter did point out was that the continuing occupancy of the office of Auditor General was unconstitutional and that he must vacate it. That was clearly correct. The Governor General was the only person who could authorise any extension of the appointment and once he discovered that the Appellant was still performing the functions of the office after reaching the age of 55 years, he was entitled to point the fact out to the PSC. There is not only no direct evidence of the nature of that communication but there is nothing, apart from the choice of the word by the Permanent Secretary, to suggest the Governor General was making any direction. The blunt terms of the request to vacate were perhaps unfortunate but may also have been the result of embarrassment that, as the responsible authority, they had overlooked the matter for nearly sixteen months.
    
18. The appellant contends that, although the Governor General is the appointing authority, section 31 means that the decision maker is the PSC because it advised the Governor General to act in a way he must follow.
    
19. Subsection 129 (2) provides two things; that the holder of the post of Auditor General must vacate his office when he reaches 55 years and that it is an obligation placed on the incumbent. The only exception arises if the Governor General agrees he may remain in the position to a later age. What that age will be must be agreed between them.
    
20. That is the clear position here and the evidence shows that the appellant was aware of it. It is surprising that he was asked to sign an agreement of service which apparently ignored the subsection despite including reference to that provision as one method of terminating the contract.
    
21. It is to the appellant’s credit that he gave the PSC more than a year’s notice and also pointed out that he had started work on important provisions which really needed the full five years of the original agreement. As a result he requested the PSC to take steps to implement the proviso to the subsection. The response from the PSC or, more accurately, the apparent lack of response is hardly to its credit.
    
22. Apart from the reference in the letter of 15 November, there is no evidence of when the position first came to the notice of the Governor General but if, when it did, he realized the situation was unconstitutional, he may, and may be expected to, advise the PSC as the responsible body of the situation. Once alerted, the PSC took steps to advise the appellant to vacate the office immediately.
    

23. The judge came to the same conclusion:

“In the end, what could have enhanced and accepted in my view is this, having had prior knowledge of Clause 23 of the Agreement of Service, corresponding to attainment of 55 years of age, it is incumbent on the claimant to vacate the Office voluntarily. If, as reflected in this case, that he had requested extension, it would be proper in my view, to wait outside of office until he receives a formal reply to his application for extension. To continue remain in office after attaining 55 years technically is occupying the office unconstitutionally. And this is what the claimant had done for one year and four months. As early as that time, the claimant could have solemnly consulted a lawyer for advice. It is very significant because section 31 of the Constitution has conferred discretion upon the Governor General to exercise whether to grant extension or not.

In my own interpretation the letter by the Permanent Secretary did not feature a direction for termination or revocation of the claimant’s appointment but featured vacation of office. It was a directive without source of proof of its authenticity, hence it was mere instruction to check on whether the claimant had vacated the office since he had attained the age of 55 years. It was the responsibility of the Public Service Commission to affirm what the Governor General had directed and whether it had not been dealt with. If not the Public Service Commission will decide what would be the nature of advice to be conveyed to the Governor General. In this case there was nothing done.

Instead the Public Service Commission then directed the Ministry of Public Service to convey to the claimant to vacate the office whilst the Commission and the Ministry of Public Service seek to facilitate the extension of contract of the claimant for another term. Only after then, the Governor General would be advised of what ought to be done. How long it will take to facilitate for another term, no one knows.”

24. At the hearing, claims were also made that the appellant had been deprived of his right to be heard and that he had a legitimate expectation that his appointment would continue under the terms of the agreement of service and that the PSC took irrelevant matters into consideration. Counsel for the appellant relied upon the oral assurances of the Chairman of the PSC and the Permanent Secretary of the Ministry of the Public Service and the fact the contract specified a term of five years.
    

25. The judge rejected them all. He explained:

...“Conscious of the impending risk of reaching 55 years, the claimant wrote to the defendant on 30th May 2011, requesting extension of his term of appointment. By his sworn statement the claimant attested that there was no reply, instead verbal or oral assurances were conveyed by the Chairman of the defendant and the Permanent Secretary of the Ministry of Public Service. Such oral assurances cannot be accepted as admissible evidence because date and time and when those assurances were made were not recorded in evidence. That piece of evidence is bad for lack of clarity and preciseness. In reality there is no evidence to support such assertion.

The most significant point is that when one deals with a subject as a written contract, anything in connection or association to a written agreement must be done in written form. Oral assurance of any nature does not assist the parties to the agreement; at least a written assurance ought to be traversed. The claimant cannot rely on orality to support his claim to verify the failure by the defendant not to reply to his application. But he should be conscious that remaining on the post after attaining 55 years of age is unconstitutional in a technical sense. To remain without formal authority is enjoying the full benefit from the terms and conditions of services which are liabilities to the Government.”

26. As we distill the judge’s decision, it correctly reflects the overall position. The appointment to the post of Auditor General is a constitutional matter. It is governed entirely by the terms of the Constitution which is the overriding law. Whilst the agreement of service was for five years, it was subject to the overriding terms of section 129 (2) that the person holding the position of Auditor General must vacate the office when he reaches 55 years. He may only hold the post beyond that if the extension is approved by the Governor General and agreed between them.
    
27. The appellant was aware of that provision and its effect as was shown by his early warning to the PSC. When he heard nothing, he had no reason to think his term had been extended and was obliged to vacate. Instead he continued after that date and, from that time, he was acting unconstitutionally. The terms of his contract did not and could not override the terms of the Constitution in respect to his appointment and tenure of office. That is the position under the Constitution and the learned judge was right to base his decision on it.
    

The appellant had chosen to pursue the case by judicial review instead of a claim of breach of contract. However, the nature of his appointment and the requirement under section 129(2) to vacate the post effectively precluded the common law claims of a right to be heard, unreasonableness and legitimate expectation which may otherwise have arisen. The appellant’s rights, in the absence of extension by the Governor General, to remain in office were overridden by the constitutional provisions at the time he attained 55 years of age.

28. The appeal is dismissed with costs to the respondent.

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Goldsbrough P

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Wilson JA

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Ward JA