Waisanau v Attorney General [2002] SBHC 102; HC-CC 285 of 2001 (8 February 2002)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 285 of 2001

WAISANAU

V

ATTORNEY-GENERAL
(As representative of Teaching Service Commission)

HIGH COURT OF SOLOMON ISLANDS
(FRANK O. KABUI, J.)

Date of Hearing: 7^th February 2002
Date of Judgment: 8^th February 2002

Mr D. Hou for the Applicant
Miss A. Mekau for the Respondent

JUDGMENT

(Kabui, J): Mr Waisanau is from Ro'one village; Small Malaita but resides in Maoro village in Central Kwara'ae. He is a qualified primary school teacher who graduated as such from the Solomon Islands Teachers College in 1979. He was born in 1955, the date and month being unknown. In 1991, he was confirmed by the Teaching Service Commission as a permanent Officer at Level 6.7 with effect from 1^st January 1991. He was then a teacher at Arabala Primary School in Malaita. He was promoted to Level 7 with effect from 11^th January 1993. In 1999, he was teacher at Ro'one Primary School at which time he was told by a letter dated 29^th November 1999 that he had been recommended for retirement. Again, by letter dated 30^th November 2000, he was told that he had been recommended for retirement. He was then a teacher at Daolusu village near Auki in Malaita. He has not been paid since the end of March 2000. He continued teaching throughout the year 2000 until he received a copy of the notice for retirement after the end of November 2000. His attempts to correct his position with the Malaita Education Authority have not been successful to date. He was employed by the Malaita Education Authority. He now comes to the Court seeking a number of declarations.

He filed an Originating Summons on 25^th October 2001 and then amended it on 14^th December 2001. The amended Originating Summons are these-

1. A declaration that the purported compulsory termination of the applicant on the ground that he has attained the retirement age pursuant to Chapter 8 rules 4 and 5 of the Teaching Service Handbook is null and void as at all the relevant times the applicant was and is still under the age of 55 years.
   
2. Consequential upon the grant of the declaration sought in I herein, that the following declarations be further made:
   

[a] The applicant be re-instated to the post as a primary school teacher with the same re-numeration prior to the purported termination

[b] That the applicant be paid his re-numeration lost for the period from March 2000 up to the date of re-instalment.

3. An Order that the respondent pays the cost of and occasioned by this application.
   

The strange thing that happened

The Chief Education Officer (Acting), Mr Tepe made the mistake. In his letter of 29^th November 1999, he informed the Applicant that his retirement notice was to be effective as of 1^st December 1999 to 29^th February 2000. In that letter, Mr Tepe also informed the Applicant that whilst awaiting confirmation from the Teaching Service Commission, the Applicant would be temporarily posted to Ro'one Primary School with effect from 13^th January 2000. It would seem that what Mr Tepe meant was that the retirement of the Applicant would be effective at the beginning of March 2000. However, the Applicant could continue teaching on a temporary basis with effect from 13^th January 2000. Mr Tepe again wrote to the Applicant on 30^th November 2000 informing the Applicant that the retirement notice would be effective as of 1^st November 2000 to 31^st January 2001. That is to say, the retirement notice would take effect on 1^st February 2001. In a Minute written at the bottom of Mr Tepe's letter of 30^th November 2000 marked "Urgent", the Chief Administration Officer in the Teaching Service informed the Chief Education Officer, Malaita, that the Applicant did not qualify yet for retirement in terms of Chapter 8.4 and 8.5 of the Teaching Service Handbook and therefore the reinstatement of the Applicant was necessary. The response by the Chief Education Officer was that the Applicant had been reposted to Daulusu Primary School and a submission would be made for his reinstatement. The Minute to the Chief Education Officer was dated 3^rd May 2001. By letter dated 27^th February 2001, the Senior School Inspector (Primary) Mr Puahanikeni, wrote to the Assistant Secretary, Teaching Service, in the Department of Education and Human Resource, Honiara, saying that he had been through the Applicant's File and saw no recommendation in that File for the stopping of the Applicant's salary. He therefore requested that the Applicant's salary be reinstated. Mr Puahanikeni again wrote to the Assistant Secretary, Teaching Service, on 26^th March 2001 and on 20^th July 2001, calling for the Applicant's salary to be reinstated. On whose recommendation Mr Tepe acted in 1999 and 2000 remains a mystery to date. Who in fact put a stop to the payment of the Applicant's salary is also a mystery in this case. This is a classical case of maladministration on the part of the Ministry for Education in this country. Someone might have made a telephone call or paid a personal visit to effect the stop to the payment of the Applicant's salary. The fact that the call for the reinstatement of the Applicant's salary has not been so far successful would seem to suggest that the person who effected this saga is still around in the Ministry for Education. The Assistant Secretary, Teaching Service, in the Ministry has not so far responded to the letters sent from Auki by Mr Puahanikeni about the reinstatement of the Applicant's salary. The responsibility for this omission therefore lies in the Ministry for Education.

The Crucial Point

The crucial point is that the Applicant has not yet attained the age of 50 or 55 under Chapter 8.4 and 8.5 in the Teaching Service Handbook. He was born in 1955. He will turn 50 by 2005 and 55 by 2010. To have been retired in 2000 or 2001 was clearly a mistake on the part of Mr Tepe or whoever recommended retirement in the first place. Clearly, the Applicant is entitled to claim a declaration that the purported compulsory termination by retirement on the ground that he had attained the age of 50 years in 2000 or 2001 is null and void at all times as being contrary to Chapter 8.4 and 8.5 of the Teaching Service Handbook. I do hereby make that declaration sought in paragraph 1 of the Amended Originating Summons. The consequential order I make is that the Applicant be reinstated to the post as primary school teacher with the same salary level and benefits, if any, prior to his purported termination as sought in paragraph 2 (a) of the Amended Originating Summons. I also order that any salary duly earned by teaching in any primary school prior to his purported termination be paid to him immediately. This order however will not apply to any period that the Applicant was not teaching as no salary had been earned for such period, if any. I make no order as to loss of salary for any period that the Applicant did not teach at any primary school by reason of his retirement notice as no salary had been earned by reason of absence from the classroom. The Respondent will pay the cost of this Application.

F.O. Kabui
Judge