Sanga v Public Service Commission [1999] SBHC 15; HC-CC 018 of 1999 (3 March 1999)

IN THE HIGH COURT OF SOLOMON NDS

Civil Case No. 01899

lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JOSES WAWARI SANGA AND OTHERS

-v-

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> PUBLIC SERVICE COMMISSION (PSC),

HAIKIU BAIABE
AND ATTORNEY GENERAL

High Court of Solomon Islands

class="MsoNormal" style="margin-top: 1; margin-bottom: 1">: 1"> (FRANK KABUI, J)

Civil Case No. 18/99

Hearing: p>th February 1999

Judgment: 3^rd March 1999

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Counsel: Andrew Nori for the Applicant

Attorney General with Manetoali for Public Service Commission

Andrew Radclyffe for the 2nd Respondent

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> RULING

(Frank Kabui J): This is an application by the 2nd Rend Respondents to strike out the Applicant’s Originating Summons filed in the High Court on 19th January, 1999 seeking a number of declarations and relief. By way of Notice of Motion filed on 5th February, 1999 the 2nd Respondents are seeking the following orders: -

1. That the Applicant’s Originating Summonummons be struck out on the grounds that by virtue of Sections 115 and 137 (4) of the Constitution and clause 75 of the Public Service Commission Regulations 1998 or clause 77 of the Public Service Regulations 1979 and at common law the First Respondent had an unrestricted right to terminate the services of the Applicant and the other Permanent Secretaries and that the Applicant therefore has no cause of action.

p class="Mss="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> or

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2. That the Applicant is not able in law to represent other former Permanent Secretaries in this action under Order 17 Rule 9 on the grounds that they are not persons having the same interest in one cause or matter.

3. Such other orders as the Court thinks fit.

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> They are doing tnder Order 27, rules 2, 3, and 4 of the High Court (Civil Procedure) Rules 1964 (the (the High Court Rules). These rules do allow any party to raise any point of law and then, amongst other things, ask the Court to decide it before the trial of the main action. If the point of law is decided in favour of the party applying for it, then it is end of the case. That decision becomes the final judgement of the court. If not, that decision of the court is regarded only as an interlocutory judgement because the matter in dispute would have to proceed to trial at a later date for the final decision of the court. The rationale for these rules is that, “... Where there is a point of law which, if decided in one way, is going to be decisive of litigation, advantage ought to be taken of the facilities afforded by the rules of court to have it disposed of at the close of pleadings or very shortly afterwards.” (See Everett v Ribbands [1952] 1 A.E.R. 823, at 827 by ROMER L. J). That is to, say, the main reason for “deciding to set down a preliminary issue is the overall convenience to the parties and the court, and whether it will save expense”. (See Australian Civil Procedure by Bernard C Cairns, Third Edition, 1992 at 170). However, the rules do say that whether or not such application, as this one is, can be granted is a matter for the discretion of the Court. So that the granting of it or otherwise is not automatic per se. The court can do so only in the most appropriate cases. Obviously, the discretionary power of the court can only be realistically exercised on the evidence before it by way of pleadings and affidavits produced in Court by the parties. There are of course clear cases for granting or refusing such application such as this. Borderline cases however are the most troublesome of them all.

As I have said, such application as this often arises from pleadings filed by the parties oies or by way of originating summons. (See Hampshire Country Council v Shonleigh Nominees Ltd. [1970] 1 W.L.R. 865). The determination of each case would largely depend on its own facts. In this case the facts can be stated as follows.

The Facts

The Applicant is a former manent Secretary in the Public Service in Solomon Islands. nds. His most recent posting was in the Ministry of Home Affairs. He was a Government Officer in the Public Service for 22 years. His appointment as a Permanent Secretary was made and effective on 11^th October, 1993. By letter dated 28^th July, 1998, the Applicant was informed by the Secretary to the Prime Minister, Mr. Hiele, that the Applicant had been recommended for premature retirement in order to facilitate improvements in the public sector. The letter stated that this was being done pursuant to regulation 73 (c) of the PSC Regulations 1998. Also, the letter stated that pursuant to regulation 76, 30 days were given to the Applicant to make representations, if any, and after the expiry of that 30 days period, his case together with any representations made would be submitted to the PSC for its decision. The response by the Applicant was dated 26th August, 1999. It was a lengthy and detailed one. The Applicant further wrote to the Secretary for the Public Service on 31^st August 1999 questioning the validity of Government action under the PSC Regulations 1979 which were revoked by the PSC Regulations 1998. By letter dated 9th November, 1998, the Secretary to the Prime Minister informed the Applicant that the PSC at its meeting on 3^rd November, 1998 had decided to retire him prematurely pursuant to PSC regulation 73 (c). By letter dated 1^st December, 1998, the Secretary to the Prime Minister Mr Hiele again informed the Applicant that the Applicant’s employment be terminated with effect from 9^th December, 1998. The vacancy Notice No. 24/98 for 21 vacancies for Secretaries to Ministries dated 13^th November, 1998 was subsequently published inviting applications. The names of the new Secretaries were published in the Public Service Circular Memorandum No. 14/98 dated 10^th November, 1998. The Applicant was not one of them.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The ApplicaCase

The Applicant still believes that the office of Permanent Secretary created by section 40 of the Constitution still exists. He says that since the new Secretaries to Ministries are not Permanent Secretaries, he is still the holder of the post of Permanent Secretary of the Ministry of Home Affairs. This, he says, is consistent with his view that his premature retirement by the PSC was not preceded by any evidence showing that he was no longer efficient in the Public Service. Also, he says, there is no case for redundancy as the office of Permanent Secretary under section 40 of the Constitution still exists and is still required. He says this is demonstrated by the fact that the Job descriptions and daily duties of Secretaries to Ministries in the Public Service are exactly the same as those performed by Permanent Secretaries. The only difference, he says, is the omission of the adjective “Permanent” before the word “Secretaries”. This being the case, the Applicant is asking the Court for declarations and other relief in his Originating Summons.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The 2nd Respondents’ Notice of Motion

In simple terms, the 2nd Respondents are seeko strike out the Applicant’s case on the ground that that he has no cause of action because the Government as the employer has an absolute right through the PSC to terminate the services of the Applicant and other Permanent Secretaries. This is so because a servant of the Government can be removed from office by the PSC under section 116 as read with sections 135 and 137 (4) of the Constitution. This is also the position at common law. In the alternative, they also say the Applicant is not able to represent other former Permanent Secretaries under Order 17, rule 9 of the High Court Rules because they do not have the same interest in the one cause or matter. As a matter of fact, the Applicant does not in any way dispute the Government’s right through the PSC to terminate his service and those of other former Permanent Secretaries. The powers of the PSC to terminate the service of public officers is well settled in this jurisdiction (See Peter Wateoli v Public Service Commission, [1988/89] S.I.L.R. 25, Wheeler v The Attorney General [1988/89] S.I.L.R. 54 and Buto, Funifaka, Manata, Tekulu Tion, Tozaka and Hiele v The Attorney General (Civil Case No. 194/90 unreported). At page 10 of Exhibit “JWS 4” attached to the Applicant’s affidavit of 19th January, 1999 he says,

“However, the permanent appointment is not precluded from the effect of ss.116 and 135 of the Constitution. The powers vested on the PSC under these provisions give the Commission the right to terminate, remove or retire a Permanent Secretary or any public officer.

On the other hand, the right to do soot absolute. PSC has a duty duty not only to ensure that the procedure in going about a termination or retirement is correct, the reasons are substantial and justifiable warranting the action sought but must also take into account that the action has the support of relevant laws. Hence, the PSC is required to adhere to and take cognizance of rules, regulations, procedures and other relevant laws.”

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There, he says, the power to terminate the service of any public er including a Permanent Sent Secretary is not absolute. I think what he means is that whilst the PSC does have the power to hire and fire, it must observe strictly its own rules of procedure and the rules of natural justice. This is indeed the position taken by Mr. Nori who has argued strenuously that the breach of the relevant PSC Regulations must necessarily give rise to a cause of action. However, Mr. Radclyffe has argued that whilst questions of natural justice could be relevant, the PSC ultimately would have the final say under section 116 as read with sections 135 and 137(4) of the Constitution in the termination of contracts of employment in the Government Service of Solomon Islands. In other words, questions of natural justice and procedure could be raised but they would not in any way restrict the PSC’s ultimate right to terminate employment. This, he says, is consistent with the position at common law as well. This being the case, he says, the Applicant and other Permanent Secretaries would have no cause of action against the Government.

The point of law raised by the 2nd Respondents and argued on their behalf by Mr. Rade can be decided but but not as an academic point of law. That would be text book stuff. In this case, the evidence so far points to the existence of a contract or a number of contracts of employment entered into by the Applicant and other Permanent Secretaries with the Government of Solomon Islands. This fact alone would point to a cause of action for breach of contract and a possible claim for damages. No amount of claim of unrestricted right to terminate employment in my view would wash away a cause of action for breach of contract. There will obviously be the real possibility for a claim for damages for breach of contract of employment. The problem in this case is however twofold. Firstly, there is no evidence of the Applicant’s contract or of those of the other Permanent Secretaries. In view of Buto, Funifaka, Manata, Tekulu, Tion, Tozaka and Hiele v The Attorney General referred to above, it is assumed that the Applicant and other Permanent Secretaries had entered into fixed term contracts with the Government which have now been terminated. If this is so, these contracts including the Applicant’s contract should be produced in Court as evidence of legally binding relationships capable of giving rise to a cause of action under the law of contract. The only evidence pointing to a contractional [sic] relationship is Exhibit “JWS2” attached to the Applicant’s affidavit of 19^th January, 1999. Exhibit “JWS2” is only a letter of appointment addressed to the Applicant in 1993. It does not contain the terms of the contract of employment entered into by the Applicant and the Government despite its reference to General Orders etc. Secondly, there is no conclusive evidence of the fact that damages may have already been assessed and settled by the Government. If this were the case, then probably there is no cause of action and this case can be concluded on the point of law raised by the 2nd Respondents. On the part of the Applicant, he says nothing about settlement of damages apart from the mention of the transfer of redundancy money into his bank account in paragraph 70 of Exhibit “JWS4” attached to his affidavit filed on 19th January, 1999. This is confirmed by Exhibit “GH11” attached to Mr. Hiele’s affidavit filed on 26th February, 1999. In my view, Exhibit “GH11” above is hearsay evidence though uncontested by the Applicant and other Permanent Secretaries. The position would have been conclusive had the Accountant General confirmed by affidavit the settlement of damages under the Applicant’s contract of employment and settlement of damages in respect of other Permanent Secretaries. If that were the case, the Applicant and other Permanent Secretaries would probably have little to complain about other than non - compliance with the PSC Regulations and the fate of the office of Permanent Secretary under section 40 of the Constitution. Even the alleged non - compliance with the spirit of the PSC Regulations and the requested interpretation of section 40 of the Constitution are issues arising from the termination of the Applicant’s employment contract and those of the other Permanent Secretaries. They are not issues arising independently of these alleged contracts of employment. They cannot also be decided in a vacuum. The alleged contracts must be produced in Court to provide the correct basis upon which these issues are to be determined.

A Borderline Case

In my view, this is a borderline case. As I have said, borderline cases are troublesome. This is what I mean. Whilst I can easily decide the point of law raised, there is some evidence, though not conclusive, of the existence of an employment contract which, if proved, establishes a cause of action straight away in contract. If that is the case, I should not find in favour of the 2nd Respondents for the simple reason that there is a cause of action in place for breach of contract. Furthermore, there is also some evidence, though not conclusive, of settlement of damages which, if proved, disposes of the Government’s liability for claim of damages. Again, if that is the case, I should not find in favour of the 2nd Respondents for the simple reason that there is still a cause of action in contract in place. There is the danger of overlooking facts though insufficient in weight which clearly demonstrate the existence of a cause of action in law. In Asoka Kumar David v Abdul Cader [1963] 1 W.L.R. 834 at 840, Viscount Radcliffe made this point by saying

“... this action is not one that can justly be disposed of on preliminary issues argued in advance of the hearing of evidence. Useful as the argument of preliminary issues can be when their determination can safely be foreseen as conclusive of the whole action in which they arise, experience shows that very great care is needed in the selection of the proper occasion for allowing such procedure. Otherwise the hoped - for shortening of proceedings and saving of costs may prove in the end to have only the contrary effect to that which is intended. This, unfortunately, is one of such cases ..."

This was a case where the appellant was the operaf a cinema who applied to the Chairman of the Urban Cban Council of Puttalam in Ceylon (the respondent) under the Public Performances Ordinance for a licence for his cinema. The respondent refused to grant the licence. The appellant thereupon alleged that the respondent had wrongfully and maliciously refused to issue the licence and claimed damages in the District Court. In the District Court, the respondent raised two preliminary issues, namely, whether or not the plaint did disclose a cause of action and whether or not the appellant could maintain the action. The trial judge held that the plaint did not disclose a cause of action and therefore the appellant could not maintain that action. The reason being that the action was against the respondent in his private capacity rather than being the Chairman of that Council. The appellant appealed to the Supreme Court of Ceylon which again ruled against him on the ground that there had been no infringement of an antecedent legal right since the appellant could not have operated his cinema without a licence. The appellant then appealed to the Privy Council and succeeded. The Privy Council was of the view that there was some evidence of duty of care owed towards the appellant for breach of statutory duties arising out of the relationship between the appellant and the respondent on the facts before the Court. The Privy Council ordered that the action be remitted to the District Court in Ceylon for trial. The point made by Viscount Radcliffe above was further endorsed in Radstock Co - operative and Industrial Society Ltd v Norton Radstock Urban District Council [1968] 2 W.L.R. 1214 where Harman, L.J. at 1223, said,

“At this juncture, I should like to protest against thihod of procedure. This is n is not a preliminary point at all. It deals with the whole subject - matter of the action, and without any evidence, and the court is left in a most unsatisfactory position and has to guess at many things which, on a hearing, would be properly proved in evidence. The procedure proper to this kind of situation is by way of motion to strike out the statement of claim as showing no cause of action. That is a well - known method of putting an end to actions without substance, but it is also well known that the court will only strike out a statement of claim in plain cases where it is clear that the action cannot possibly succeed.”

Again, at 1230, Sachs L.J. said

“Any preliminary issue which falls to be tried in the course of an action shouldhould always be one in which great care is taken to ensure that the issue presented for decision is well - defined and that the facts upon which it has to be considered are clearly ascertainable.”

So, it can be seen that there is no hard and fast rule as to what the court mustn all cases of this s sort. Each case must be taken on its own merit based upon the facts before the Court. It also depends upon how the issues to be decided are put before the Court. This I mean whether or not the issue is simply a preliminary point of law per se or a proceeding to strike out an action for there being no cause of action. In this case, the 2nd Respondent are saying, as I understand it, that the PSC’s unrestricted right to terminate the Applicant’s employment with the Government per se automatically removes any right to any cause of action in contract. With respect, this assumes that there is a contract the breach of which has been satisfied adequately with settlement of damages. As I have said, there is no evidence to support the position taken by the 2nd Respondent. If I were to rule in favour of the 2nd Respondents, I would be doing so in a vacuum. There is not sufficient evidence before me upon which I can conclusively decide the point of law raised by the 2nd Respondents in their favour. I therefore refuse to grant the proposed order 1 sought by the 2nd Respondents in their Notice of Motion. In the alternative, the 2nd Respondents say, in any case, the Applicant is not entitled to represent the other 13 Permanent Secretaries under Order 17, rule 9 of the High Court Rules on the ground that they are not persons having the same interest in the one cause or matter. This may be so but the intention of the Applicant to represent others is shown by the fact that the Applicant’s Originating Summons has been filed under Order 17 rule 9 as read with Order 58, rule 2 of the High Court Rules. The only omission is a list of the names of the other Permanent Secretaries on the face of the Originating Summons. That list is now contained in Exhibit “AN1” attached to Mr Nori’s affidavit filed on 1st February, 1999. There is evidence of the fact that the Applicant and those whose names are listed in Exhibit “AN1” above and Exhibit “G.H.11” attached to Mr. Hiele’s affidavit above were former Permanent Secretaries. There is also evidence of termination of their employment contracts although these contracts are yet to be produced in Court. In my view, the Applicant is entitled to represent the other Permanent Secretaries because they are persons having the same interest in the one cause or matter. The one cause or matter being their common unhappiness about the termination of their employment contracts by the PSC dictated by the Government in its quest for a better and small efficient Public Service. Order 17, rule 9 of the High Court Rules is really the equivalent of Order 16, rule 9 of the English rules of practice. The English position regarding the interpretation of their Order 16, rule 9 was discussed and confirmed in Duke of Bedford v Ellis and Others [1900] UKLawRpAC 56; [1901] A.C. 1. In that case, the question was whether or not fruit growers etc as a class of persons could be represented in Court by one or more of them. Six of the fruit growers had brought an action on behalf of them all in Court. All the Law Lords except Lord Brampton had agreed that one or more of the fruit growers could act on behalf of all the fruit growers who were numerous to come to Court. At page 8, Lord Macnaughten said,

clas class="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “The old rule in th Court of Chancery was very simple and perfectly well undl understood. Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could “come at justice” to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not, I think, in accordance with common sense.”

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Again, ge 14, Lord Shand said,

“My Lords, the rule of Court (rule 9 of Order XVI), the efof which is the subject of t of controversy between the parties in this case, is in these terms: “Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued .... in such cause or matter on behalf or for the benefit of all persons so interested.” I am of opinion, with the majority of the Court of Appeal that the rule applies to this case, and that the appeal should therefore be dismissed. The rule has been framed and adopted for a useful and important object the saving of the multiplication of actions, with the attendant costs, in cases where one action would serve to determine the rights of a number of persons in a question with another party called as defendant. A series of different actions one after another by different plaintiffs is to be no longer necessary in cases where numerous persons have “the same interest in one cause or matter,” for in such case “one or more of such persons may sue on behalf or for the benefit of all persons so interested.” The rule is obviously one of advantage not only to plaintiffs but to defendants also, in the way of saving multiplication of suits and it is of much importance to note, as observed by my noble and learned friend Lord Macnaghten, that it only applies the practice of the Court of Chancery, of which he gives many instances, to all divisions of the High Court”.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> It is therefore obvious that Order 17, rule 9 must be given a liberal mg. It is a rule of co convenience as it is said by the Law Lords in the case cited above. This, I think, is the current position on how Order 17, rule 9 of the High Court Rules should be interpreted. (See John v Rees [1970] Ch. 345, Prudential Assurance Co. Ltd. v Newman Industries Ltd. [1980] 2 W.L.R. 339 and Irish Shipping Ltd v Commercial Union Assurance Co, Plc. [1990] 2 WLR 117). This being the case, I also refuse to grant the proposed order 2 sought by the 2nd Respondents in their Notice of Motion. The order of this Court is that the application by the 2nd Respondents is refused. In view of this ruling and the remarks I make on the state of evidence by affidavit I further order that:-

lass="MsoNoMsoNormal" style="text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 1. the Applicant produce a copy of his contract of employment by affidavit together with details of payment of monies, if any, made to him by the Government following the termination of his contract of employment within 14 days from today;

2. the other Permanent Secretaries produce copiesopies of their contracts of employment by affidavit together with details of all payments of monies made to them by the Government following the termination of their employment contracts and any other relevant information within 21 days from today excepting those who may be overseas and is practically impossible to obtain instructions from them;

lass="MsoNoMsoNormal" style="margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 3. the Accountant, General or the relevant officer in the Treasury Division produce by affidavit details of all payments made to the Applicant and other Permanent Secretaries by the Government following the termination of their employment contracts within 14 days from today;

4. the hearing of the Applicant’s Originating Summons be fixed as soon as possipossible after the filing of the said affidavits in the High Court Registry.

ass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> F.O. Kabui

Judge