Nimepo v Premier of Guadalcanal Province [1996] SBHC 35; HC-CC 379 of 1995 (10 July 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 379 of 1995

ter">DESMOND NIMEPO

-v-

PREMIER OFER OF GUADALCANAL PROVINCE

e: Muria, ria, CJ

Hearing: 10 June 1996 - Judgment: 10 July 1996

Counsel: A. Nori for Applica> Defendant/Respondent absent

MURIA CJ: This is an appl application by Desmond Nimepo, a student at Ruavatu Provincial Secondary School for declaration that his suspension from the school was unlawful. The defendant did not attend the hearing nor was he represented despite the fact that service was effected on him on 8 January 1996 and the notice of this hearing was sent to him on 30 May 1996.

Mr Nori for the applicant asked the matter to proceed despite the absence of the Respondent. In view of the fact that the respondent had notice of this case and the hearing and having received no explanation whatsoever justifying the non-attendance at the hearing, and further this matter has been hanging over this student since September 1995, the court had decided that the matter must proceed.

The background to this case is fairly straight forward. The applicant was a Form 5 student at Ruavatu Provincial Secondary School. On the 7 September 1995 between 8.00 pm - 9.00 pm, the applicant and one other male student were at the school's basket ball court when they heard a loud scream from the girls dormitory. They both ran to see what had happened. When they reached the girl's area, some of the girls told them that a man was peeping into the girl's dormitory. The applicant and his- friend actually saw the peeping-tom whose name was Seka who was well-known to the students. The applicant then returned to the basketball court where they were met by Ms Kakai, a member of the staff. Ms Kakai asked the applicant and the other male student why they went to the girls dormitory area and they explained it to her. Nothing was heard of the matter until the Deputy Principal informed the applicant that he was under suspension for two weeks.

Having been told of his suspension, the applicant requested the Deputy Principal that he would like Ms Kakai to be called so that he could ask her to verify his explanation for being at the girls' area on evening of 7 September 1995. The Deputy Principal agreed and so the applicant went to look for Ms Kakai. It was then that he met the police in the school compound confronting and arresting students. Upon seeing that the applicant remarked to one of the policemen that "this is not apartheid". The police officer arrested the applicant also and took him and other students to Honiara where they spent the night in the cell.

On 27 September the applicant returned to school after his two weeks suspension only to be told that his suspension was for one (1) month. It was then also that he was formally handed to him his letter of suspension.

The further two weeks suspension now meant that the applicant would miss his Form 5 exam. He was told that he could sit his exam as an external students. He did sit his exam but that he had to go to KGVI School to do that. He was not able to prepare well for his exam and consequently he failed.

Those background facts display a most regrettable scenario for this young student who was at the material time in a very decisive period of his education. I can put it no better than what he himself said:

He was told to take his exam as an external student as we have seen. But the fact remained that the further two weeks of suspension meant that he had to be kept away from the place where he could properly prepare for his important exam and that includes having no access to teachers and library and other study materials. His failure in his exam in such circumstances should not be a surprise at all to any right-minded person.

Before I deal with the issue to be decided in this case, I feel I should say something about this so-called school discipline, since this is not the first time that complaints against disciplinary actions imposed by school authorities upon students have come before the courts. This increase in the number of complaints brought to the Court's attention may well send the signal that students, are becoming aware of their rights. But I think it goes further than that. It is also a signal for the need of a proper disciplinary mechanisms in schools taking into account both the need to maintain high discipline in the schools as well as the interest of the students.

Schools are among the important means of advancing education and the teachers and other school officials play important roles in that important means. It is upon them that parents entrust their children to be educated. With that role and trust the schools are empowered to make rules for the orderly running of the schools as well as for the discipline of the children in the schools. Such school rules, however, must be applied and enforced consistently with any rights the children have under law. This is particularly more so in disciplinary cases.

Having said those, I now turn to the issue raised by the Originating Summons. The issue here, is whether the suspension of the applicant was done in consequence of a breach of the rule of natural justice. This rule simply put is that "no man should be condemned unheard." Imbued in this rule is the principle of fairness. Bodies which are empowered to make decisions which have adverse consequences on other persons have a duty to act fairly.

The applicant in this case requested an opportunity to have his side of the story explained to the Deputy Principal. He requested that one Ms Kakai be called to help elucidate on the matter. However that was the end of it. The applicant was never given the opportunity to explain his side of the matter. He was first given, two weeks suspension by the Deputy Principal (not in writing) and sometime after 27th September 1995, a letter dated 8th September 1995 was given to him telling him that he was in fact suspended for four(4) weeks. That letter was signed by the Chairman of the Disciplinary committee.

As a blatant disregard for the rule of natural justice and any other rights that the applicant had neither the Deputy Principal nor the Disciplinary Committee saw fit to give this student any opportunity to state his defence or at least invite him for his explanation. The right to be heard is so fundamental to a citizen's constitutional right that an adjudicating authority must strive to accord it to a person brought before such authority. A student is in no less position than any other citizen.

I have no doubt that both the Deputy Principal and the Disciplinary Committee knew that the applicant and other Form Five students were about to enter into their decisive period of education then and any disciplinary decision having serious effect on the applicant must be considered properly and carefully. See Clement Kakano -v- Attorney General CC214 of 1991. In this regard, the school authority bears the burden of demonstrating the necessity to suspend the applicant in the circumstances where his future education prospect would be jeopardised. That burden has never been discharged in the present case.

It must be pointed out that the protection against the breach of the rule of natural justice applies equally to cases of suspension and expulsion of students from schools.

I find in this case that the suspension of the applicant from Ruavatu Provincial Secondary School was done in consequence of a breach of the rule of natural justice and therefore invalid. I grant the declaration sought.

The applicant also asks for compensation in this case. This action is in effect a judicial review of the administrative action of a public authority namely, the Ruavatu Provincial Secondary School Authority whose action I have found to be invalid.

As to compensation for unlawful administrative action, de Smith and Brazier in their New Edition of Constitutional and Administrative Law have pointed out at page 583:

"When an unlawful administrative decision results in the commission of an actionable wrong, a citizen suffering loss as a result of that decision may be able to claim damages as well as obtaining an order to quash or declare the decision invalid."

In the present case the applicant did not show that he suffered any financial loss through the invalid decision of the school authority. Nevertheless, in any view, the decision of the school authority to suspend him at the particular period had undoubtedly and substantially contributed to his failure in his Form Five examination. The invalid decision also had been procured through a breach of one of the fundamental rights of the applicant, namely the right to be heard. The evidence contained in the applicant's affidavit clearly confirmed this.

Not only that he was deprived of the opportunity to properly prepare for his important exam, he had lost the opportunity to continue further in his education. He has now sought and was given employment with one of the banks and informed the Court that he lost interest in going back to school.

I feel in this case, the applicant must be given some measure of compensation. Had he chosen to return to school, I would have no hesitation in ordering that he be taken back to Ruavatu PSS or any other similar school so that he could be given the chance to try again and pursue his education. He chose not to, and I do not blame him.

The applicant had obtained employment and in that sense he has mitigated his loss. That does not confer any credit to the authority responsible for the circumstances forcing him to find such employment.

In the circumstances of this case I order that the applicant be compensated in the sum of $1000.00. I also order the defendant to pay the costs of these proceedings.

Order:

1. Declaration that the suspension of the applicant is invalid being in breach of the rule of natural justice.

2. Compensation of $1000.00 be paid to the applicant.

3. Costs to be paid by defendant.

GJB Muria
CHIEF JUSTICE