Malau v Solomon Islands College of Higher Education [2006] SBHC 136; HCSI-CC 178 of 2006 (31 August 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 178 of 2006

CASPER MALAU AND
CATHERINE VUNAGI

V

SOLOMON ISLANDS
COLLEGE OF HIGHER EDUCATION

Date of Hearing: 18th August 2006
Date of Judgement: 31st August 2006

A.N. Hou for the Applicants
A. Radclyffe for the Respondent

Palmer CJ:

The applicants, Casper Malau and Catherine Vunagi ("Casper and Catherine") were final year students both doing their Diploma in the School of Nursing and Health Studies at the Solomon Islands College of Higher Education in 2005 ("SICHE"). At the end of the year, the Board of Studies ("the Board") awarded them fail grades each for the Family Health Unit NSD 22. The reasons given were for late submissions of assignments and in Casper’s case for his absence also from the Clinical (Paediatric Ward).

Before submitting their late assignments on 14th October 2005 both wrote a letter of explanation to their Head of Department giving reasons for the delay.

After they had been informed of the Board’s decision to fail them, they appealed in writing to the Student’s Appeal Committee ("the SAC") against the decision of the Board. The SAC issued its decision on 19th December 2005 confirming the decision of the Board and advised them to redo the failed component of their course.

On 9th January 2006 they wrote to the Director of SICHE seeking further clarification and assistance. The Director again repeated what the SAC had told them to do; to repeat the subject they had failed.

They now come to this court seeking relief inter alia by way of certiorari to quash the decision of the Board. Three grounds, bias, unreasonableness and legitimate expectation have been raised in support of their claim for relief.

The issue in this case is whether an error of law on the face of the record has been committed by the Board based on any of those three grounds.

1. Bias.

Casper and Catherine say that an error of law had been committed as a result of bias on the part of one member, Benjamin Harry Bezo ("Bezo"). They say because he was biased against them, the decision of the Board should not be allowed to stand.

The test for bias in this jurisdiction has been well established in a number of cases. It is whether there is a real likelihood of bias, and the standard to be measured against, is that of a reasonable bystander, or what a right minded person would think in the circumstances[1].

I have read the affidavit of Casper and Catherine filed on 9th May 2006, the Statement filed pursuant to Order 61 rule 2(2) of the High Court (Civil Procedure) Rules, 1964 and listened to the submissions of their lawyer, Mr. Hou and also submissions made on behalf of SICHE. For the following reasons I am not satisfied the ground of bias has been proven on the balance of probabilities.

(i) I find nothing in their evidence to suggest that there is a real likelihood of bias on the part of Bezo. Bezo not only denies the allegations raised against him but says that if he had had any grudge against them, he could easily have failed them in the units that he supervised. He says that both obtained passes in those units.

(ii) The reason for their failed grades had nothing to do with Bezo. It was an obvious fact that they had failed to comply with the time limits set for their assignments in that particular unit. Bezo had no direct control over that matter other than as a member of a ten member Board. Another member of the Staff, Rebecca Bettie Manehanitai ("Rebecca") was responsible for that particular unit in which they were given fail grades. There is nothing before this court to suggest that Bezo had any influence or control over Rebecca regarding their performance.

(iii) The Board is comprised of ten members. That is a very large Board. The likelihood of any successful allegation of bias being sustained is most unlikely or remote. Apart from the allegations raised against Bezo, no other material has been produced which could suggest that Bezo had any influence, control or power over the nine members of the Board. But even if it is possible to say that Bezo may have been biased (which is not the case) and therefore should be excluded from the Board, it would have made no difference to the decision of the Board which was based primarily on the fact that they were late in handing in their assignments.

Unreasonableness.

Casper and Catherine say that the decision of the Board was unreasonable in that it took into account an irrelevant matter. The irrelevant matter alleged to have been taken into account was the fact that they had submitted their assignments late.

For the following reasons I am unable to find that the issue of late submission of assignments is an extraneous consideration or irrelevant to the issue before the Board.

(i) It is a normal aspect of any institution or school, that time-frames or time limits are given within which course assignments etc. have to be completed by. Everyone is thereby treated equally in terms of the same period of time given within which to complete assignments.

(ii) The imposition of time limits instills confidence, discipline and efficiency. Management of time becomes crucial in such situations. Sacrifices have to be made. Other activities have to be foregone in order to meet deadlines. Rebecca points this out clearly in her affidavit when she says that nursing is a disciplined profession. She pointed out that late submissions reflected poorly on them in terms of discipline, attitude and responsibility. Commitment and dedication are essential elements in such a profession.

(iii) Casper and Catherine were given reminders to complete their assignments on 11th July 2005 and 26th August 2005. Despite these reminders, the assignments were late by four months. She also says that they failed to ask for help when they needed it.

(iv) They were both given opportunity to be heard. Both the Board and the SAC had ample opportunity to appraise the merits of their reasons for the delay before any final decisions were made. That is a matter entirely within the discretion of those bodies and it is not for this court to re-visit the merits of their decision. This court must not usurp the discretion which Parliament had conferred on SICHE.

I am satisfied those respective bodies set up by SICHE to determine particular aspects of their course/training had acted with all reasonableness and it is no part of this court’s function to look further into their merits. I am satisfied the issue of late submission of assignments was a relevant matter for the consideration of those respective bodies. I am satisfied they considered that matter fully and determined to give fail grades for the Family Health Unit NSD 22. I find no error of law under that ground.

Legitimate Expectation.

Casper and Catherine say that both the Head of School and Head of Department had assured them that their late assignments would be marked and awarded pass grades. They say they had been assured that they had been awarded pass grades.

Verzilyn Isom, Acting Head of School, denies the allegations that she gave any assurances to them. She says she merely gave guidance to the Head of Department, Rebecca, as to what needed to be prepared for the Board meeting. Rebecca also denies giving any assurances. She says she told Casper that she would accept the overdue assessments and mark them so that they can be considered at the Board meeting.

I am satisfied there has been no assurance which would amount to any legitimate expectation on the part of Casper and Catherine to the effect that the Board had awarded them pass grades instead of fail grades. The most they can expect is that their late assignments would be considered by the Board as the final arbiter in terms of awarding grades. This clearly has been done. Both the Head of School and Head of Department were present at the Board meeting. I am satisfied their case was fully presented before the Board. But even if that might not have been the case, it was again presented before SAC on appeal for their consideration. Their decision however was the same. The decision to award final grades was a matter for the Board to exercise. There is no suggestion that the Board did not consider their case fully, had acted unreasonably or had abused its discretionary powers in so doing. I find nothing under this ground by which Casper and Catherine can claim any legitimate expectation which would warrant intervention of this court by way of granting orders of certiorari to quash the decision of the Board.

Conclusion

Casper and Catherine have exhausted all legitimate means of review regarding their complaints. There is nothing more to it. I find no error of law that would support their claim for orders of certiorari. Their action must be dismissed with costs.

Order of the Court:

Dismiss application for Certiorari with costs.

The Court.

---

^[1] See Talasasa v. Paia and Another [1980-1981] SILR 93; Ngina v. Reginam [1987] SILR 35; Rade and Soso v. Sautuana [1985/86] SILR 55