Eastern Marketing Distributors v Attorney General [2019] SBCA 13; SICOA-CAC 22 of 2017 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Eastern Marketing Distributors v Attorney General
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Brown J)
Court File Number(s):	22 of 2017
Parties:	Eastern Marketing Distributors, Zerowaste Management Service Limited
Hearing date(s):	8 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. R Firigeni for the Appellant Mr. S Banuve for the Respondent
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The appeal is dismissed with costs
Pages:	1-5

JUDGMENT OF THE COURT

1. In a judgment dated 5 July 2017, the High Court determined a claim for breach of a contract between Eastern Marketing Distributors and Zero Waste Management Services Ltd. (the appellants) and the Government of the Solomon Islands represented by the Attorney General (the respondent).
2. The decision made, the subject of this appeal, is that the contract itself was void. The contract was intended to provide for airside maintenance at Henderson International Airport for a period of years. Given its likely cost, tenders had been invited in accordance with the respondents Financial Instructions and the appellants were offered a contract following that tender process which itself involved a decision by the Ministry of Communication and Civil Aviation Ministerial Tender Board (MTB). The MTB is established by the respondents Financial Instructions (FI) and is chaired by the relevant Permanent Secretary to the Ministry. The Permanent Secretary (PS) is also the Ministry Accounting Officer (AO).
3. During the tender and contracting process there was a change of PS to the Ministry. The outgoing PS executed the contract after his appointment as PS to the Ministry had been terminated and a new PS had been appointed. There is no dispute on this appeal that the relevant change was effected by the respondent on 12 March 2012.
4. The grounds of appeal, set out in the notice of appeal, filed following the grant of leave to appeal out of time, are three in number. The grounds are:-
   1. The learned judge erred in law in finding that contracts entered into by the Ministry of Communication and Aviation is (sic) void (not voidable) at the point of singing of the contract for airside maintenance, for lack of authority.
   2. The learned judge erred in law in finding that the letter dated 30 March 2012 by Francis Lomo validly terminated the contract for airside maintenance....
   3. The learned judge erred in law when he held that the PS is the proper authority to enter into and terminate contracts on behalf of the Ministry....

Ground II

5. There is no finding within the judgment that the letter dated 30 March 2012 written by the then PS Francis Lomo terminated the contracts in issue. If there had been such a finding it would contradict the principal finding that the contracts were void ab initio. Given that no such finding exists, this ground of appeal must inevitably fail.

Ground III

6. According to the submissions made at trial, themselves supported by material filed within the claim, the appellants relied upon previous contracts for performance of the same work executed between themselves and the PS for the time being within the Ministry. They also rely upon the present execution by a PS who was moved from the Ministry of Communications and Aviation at or around the time of the execution. It appeared to the trial judge that this paradox, relying on the authority of a PS to execute whilst simultaneously denying the authority of the same to execute the contracts, could not be successful.
7. The supporting submission is that the responsible party to execute the contract following a decision of MTB is the MTB itself and not the PS to the Ministry. Apart from the obvious contradiction, this submission is not supported within the respondents FIs. Within those FIs there is found the establishment of the MTB and its functions, none of which suggest the MTB is the body to enter into contracts but rather to consider submissions on a tender and award the tender to the successful supplier. FI’s are to be read in conjunction with the Contract Administration Manual (CAM) P7 27 (27.1) and the form of all contracts must be approved by the Attorney General before they are signed.
8. Taken together, it is clear that the AO to the relevant Ministry, being the PS, is the responsible officer to execute the subsequent contract for services with the awarded supplier. This is, indeed, what happened when previous contracts between these parties had been executed and what, according to the appellants own material, happened here, save that when he executed the contract the executing PS no longer held that post.
9. Ground III must inevitably fail.
   

Ground I

10. This ground concerns the finding that, as at the time of execution, the relevant PS was not the person who executed the contract. The surrounding facts are not in dispute. The individual who executed the contract on behalf of the respondents had been the PS to the relevant Ministry during the tender process and had held the position of Chair of the MTB which considered the bids and awarded the successful supplier. Prior to execution of the contract putting that award into effect, he had been removed from office and replaced by a new PS. The question raised at trial, and questioned on this appeal, is who had the authority to execute the contract, the removed PS or his replacement?
11. For the appellant, on this appeal, it is submitted that the outgoing PS retains residual authority to complete unfinished business during a handover period, and that this residual authority is sufficient to execute contracts on behalf of the respondents. The respondents submit that authority to execute on their behalf vests in the PS in post.
12. This was discussed at trial and the relevant discussion can be found at paragraphs 5 – 7 of the judgment. There is no material before us on which we could overturn the factual findings made at trial, and even if there were, such a course would be improbable without good cause.
13. As to the legal effect of the findings of fact, we agree with the trial judge. Whilst an outgoing PS will undoubtedly have the authority, indeed obligation, to prepare the affairs of the Ministry for a smooth and effective handover, all legal authority to act on behalf of the Ministry cease when he is removed from post, even if he is doing nothing more than putting into effect decisions already made by others. Only the PS at post holds the legal authority which accompanies that appointment.
14. This ground of appeal fails.
15. As appears from our reasons for decision, this appeal and indeed the claim itself, was always destined to fail given the arguments put forward in its own support. In the event the appeal is dismissed with costs of and incidental to the appeal to be paid by the appellants to the respondent, such costs to be agreed or assessed.
16. The order if this court is that the appeal dismissed with costs.

Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member