Solomon Islands Mission of the Seventh Day Adventist Church v Feratelia [2018] SBCA 22; SICOA-CAC 9005 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Solomon Islands Mission of the Seventh day Adventist Church v Feratelia
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands(Faukona J)
Court File Number(s):	CA 9005 of 2018
Parties:	Solomon Islands Mission of the Seventh day Adventist Church, George Fafale, Samuel Panda v Francis Feratelia
Hearing date(s):	8 October 2018
Place of delivery:	High Court of Solomon Islands- Court Room Six(6)
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	N. Laurere for the Appellant P. Afeau for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act
Cases cited:
ExTempore/Reserved:
Allowed/Dismissed:	The appeal is allowed
Pages:	1-6

JUDGMENT OF THE COURT

1. The first appellant is the entity responsible for the operation, management and affairs of the Seventh day Adventist Church (SDA) in Solomon Islands. The second appellant is its President and Chief Executive Officer and the third appellant is its General Secretary.
2. The respondent is a member of the SDA and, in 1986, was employed as a town evangelist in Honiara and other urban centres in Solomon Islands. He was employed by the Eastern Solomon Islands Mission and, in 1994 was ordained a pastor. Ordination was the responsibility of the Western Pacific Union Mission; the next level above the Missions in the SDA hierarchy.
3. His employment by the Eastern Solomon Islands Mission ceased when he had the opportunity to attend the Pacific Adventist University in Papua New Guinea. His time at the university was marked by a number of disciplinary problems and the organisations which had been assisting him financially terminated their assistance. On 18 June 2002, he was sent a letter by the secretary of the (by then re-named) Trans Pacific Union Mission. The letter commenced:
   • RE: ANNULMENT OF MINISTERIAL ORDINATION
   • On behalf of the Trans Pacific Union Mission Executive committee which convened on the 11^th and 12^th June 2002 in Suva, an action was taken to annul your Ministerial Ordination effective forthwith.
   • It is required that you return to relevant Church Authorities any ministerial credential card/s that you hold.
   • Brother Francis, the action taken after much prayer, which was based on the fact that you have, as an ordained minister, amongst other things, persistently refused to recognise duly constituted Church authority.”
4. Over the next years there was a substantial correspondence between the respondent and the church authorities on the annulment. However, it was not until 7 May 2013, that he brought a claim in the High Court seeking declaration that “the purported suspension and termination of the claimant as a pastor of the church is null and void.” and other declarations and orders relating to the annulment.
5. The pleadings and other preliminary issues resulted in the hearing being delayed until 2017 and, in a judgment delivered on 8 February 2018 the learned trial judge found in the claimant’s favour by granting the order declaring the decisions suspending the claimant as Pastor null and void. The court declined all other requested relief except for an order for general damages to be assessed with costs.
6. The present appellants filed an appeal on a number of grounds but it is only necessary to deal with two; that the learned judge erred in fact and law, first, when he failed to appreciate and address the fundamental issue that the defendants sued in the court below were the wrong parties and, second, when he exercised the court’s discretion under section 39 of the Limitation Act on whether or not to allow the action to continue even though it was over the six years’ time limit.
7. The evidence before the court had included the provisions of the SDA Manual and the SDA South Pacific Working Policy. The judge recognised their significance:
   • “In guiding the general administration of the Church, the SDA Church relies on the Manual and the South Pacific Division Working Policy. The two documents contain relevant and coherent guiding principles. One of which is applicable to disciplinary processes which the Church must adhere to.”
8. It is surprising that, having seen those documents and recognising their significance, the judge did not conclude that the case had been addressed to the wrong defendants. He had certainly recognised the problem. He stated:
   • “It is an acceptable principle that the body that made an appointment also has the same right to discipline and to dismiss any such appointment. By issuant of a letter of 18^th June 2002 to the claimant annulling his Ministerial ordination by the Trans-Pacific Union Executive committee, maintained its authority to appoint/ordain and fire. I would agree it was not the decision of any of the defendants. The claimant has agreed he received that letter.”
9. Later he returns to that issue:
   • “another significant point is that Trans Pacific Union Executive committee which made the decision was not a party to this proceedings. In normal circumstances the current Defendants cannot be liable for an act done by someone else, neither answerable for it. That is a law recognised universally and cannot be changed in any manner of case or circumstances.”

It is difficult to understand why, having correctly reached that conclusion, the judge failed to stop the case and dismiss the claim. The appeal must succeed on that ground.

10. That is an end of the matter but we should refer briefly to the other ground we have identified above, namely the issue of limitation of action. The general rule of limitation under section 5 of the Limitation Act provides that no action shall be brought after the expiration of six years from the date the cause of action accrued.
11. If an action is brought after the prescribed period of limitation, the court must dismiss the action unless the court finds reason to allow the action to proceed under the provisions of section 39. It is, as the learned judge found, an exercise of his discretion and section 39 requires the court to consider the effect of the extension of time on both the claimant’s and the defendant’s case.
12. Further matters the court is required to take into consideration are set out in subsection (2) and include the length of and reasons for the delay by the claimant (2) (a): whether the delay will make evidence from either party much less cogent (2) (b); the conduct of the defendant after the cause of action arose including the extent to which he responded to requests reasonably made for information or inspection (2) (c) and the extent to which the claimant acted promptly and reasonably once he knew whether or not the act of omission of the defendant to which the cause of action was attributable might be capable at the time of bringing an action (2) (e).
13. In this case the delay (eleven years) almost doubled the period of general limitation. It must be extremely unusual for a court to be able to say that such considerations as are set out in subsection (2) make it necessary or proper to waive a delay of the length the judge did in this case. When the court is given a discretion in any matter, it is not something which should be applied in an arbitrary or ill-considered manner and the judge exercising it should always state his reasons clearly enough to allow proper understanding of the need for the exercise of his discretion.
14. The learned judge explained how he approached the exercise of his discretion:
    • “The Claimant attempted to convey reason for his delay. That issue between him and his own church, which he was a member and Pastor, was a religious difference which could be resolved amicably without resumption to legal litigation. That notion could be true in general consensus.
    • The context of what the Claimant attempted to explain was not which he could reasonably contemplated. A decision to annul his ordination and licence was not negotiable. If he felt he was unfairly treated, he can either appeal to the next hierarchy of authority within the Trans Pacific Union of the SDA or, in the absence of such, file a claim for judicial review and argue other entitlements of rights in a Court of law. That step was not first considered initially, but was the only legal path available. I think the delay is unreasonable in normal circumstances. However, the circumstances of this case is different from normal.”
15. The judge then considered the merits of the claim before returning to the issue of the delay:
    • “I have reasonable grounds to act, which I am satisfied on the balance to do so, acknowledging the exercise of discretion reflected by adopting a lenient approach in considering the delay and place emphasis on fairness, a cogent right of the Claimant recognised by law, which must be respected must be prevail in this case.”
16. We do not accept this is a proper basis for allowing such a lengthy waiver of the period of limitation. No court will decide whether to exercise such a discretion without considering the merits of the claim or the chance of success as the judge did in this case but he has, with respect, given only fleeting consideration to the matters in subsection (2).
17. As stated in paragraph 9 above, the appeal must be allowed and the judgment set aside with costs to the appellants.

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Goldsbrough P
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Ward JA
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Lunabek JA