Lomo v Attorney-General [2009] SBHC 9; HCSI-CC 69 of 2008 & 48 of 2008 (Consolidated) (23 April 2009)

HIGH COURT OF SOLOMON ISLANDS

Civil Cases No.69 of 2008 & 48 of 2008 (Consolidated)

IN THE MATTER BETWEEN:

FRANCIS LOMO
(1ST CLAIMANT)

PETER HAUIA, NAERI ALAMU, DR. ISRAEL WORE,
DR. JOHN ROUGHAN AND CHARLES VIVIA
(2ND GROUP OF CLAIMANTS)

AND:

ATTORNEY-GENERAL
(Representing Public Service Commission and the Office of the Prime Minister)
DEFENDANTS

IZUAKO, J.

Date of Hearing: 02 Dec 2008 – March 2009
Date of Judgment: 23 April 2009

Dr. P. Tagini Counsel for the Claimants’
Ms. L. Folaumoetui Counsel for the Defendants

JUDGMENT

IZUAKO, J: On March 10 2008 the six claimants on record sued the Attorney-General as representing the Public Service Commission and the Office of the Prime Minister for wrongful termination of employment in Civil Case No. 69/08. Prior to the said suit, on the 19 February 2008 the Attorney-General had instituted civil suit No. 48/08 against four of the six claimants for failing to return four official cars allocated to them while they were in service.

The two matters were subsequently consolidated on December 02 2008 and the now consolidated suit went to trial on the same date.

The Claimants’ Case

Each of the six claimants had served as a Permanent Secretary in the Government of Solomon Islands. On their appointment as Permanent Secretary, each of them was invited to sign a written contract of service for a fixed term of years. These contracts were prepared by Government who was the employer and each of the newly appointed permanent secretaries was merely required to read his own document and append his signature in agreement with the terms and conditions of the written contract. In each case the Secretary to the Prime Minister and Cabinet signed on behalf of the Solomon Islands Government.

The 1st claimant Francis Lomo signed his contract to run from 08 June 2007. It was a contract for a fixed term of three years to terminate on 07 June 2010. One of the five other claimants namely Dr John Roughan signed a contract effective from 25 June 2006 for a fixed term of four years. The other four claimants on record each signed a contract effective from 13 July 2006 also for a fixed term of four years. These contracts were all titled Agreement of Service of Permanent Secretary.

In the course of their services and precisely on 13 January 2008, each of the six claimants received a letter purporting to terminate his/her services as a Permanent Secretary. The identical termination letters were all signed by one John Saunana, Deputy Secretary to Cabinet. The letters stated that the terminations were endorsed by the Public Service Commission on the advise of the Prime Minister pursuant to "S.128 (1) and (2) of the Constitution and S.3 (d) as amended in 1989 of the Public Service Act 1988". The terminations were to take immediate effect. The second paragraph of the termination letters continued that the affected officer may pursue his/her termination entitlements with the Accounts Section of the Office of the Prime Minister.

The termination letters did not provide or state any reason for the abrupt termination of employment. None of the six claimants terminated had been warned or reprimanded or cautioned or had any allegations of misconduct brought against him/her or had undergone disciplinary proceedings. None of them was given notice of his/her termination.

The claimants briefed solicitors who wrote to the Office of the Prime Minister alleging wrongful and unfair termination. A stream of letters then flowed between the solicitors to the claimants, the claimants themselves and representatives of government. Some of these letters were about what termination benefits the claimants were entitled to.

When the claimants went to collect the termination benefits, government insisted that it would pay three months salaries and allowances only, in lieu of notice. The 1st claimant and his lawyers sought to convince government officials that his written contract of service differed in some of its provisions from the contracts of the five other claimants and that the said contract stipulated that he be paid for the unexpired period of the contract in the event of a premature termination. These fell on deaf ears.

All the six claimants have asked the court to declare the terminations wrongful. They also ask for special or general damages calculated to add up in the sums of salaries and allowances for the unexpired period of the contracts.

Claim of the Defendants

As to suit no. 48/08 brought by the defendant against four of the six claimants namely Francis Lomo, Israel Wore, Peter Hauia and Charles Viva; it is for the recovery of four official cars which were allocated to the affected claimants while in service and which they had not returned following their terminations. The Attorney-General in that suit sought court orders for recovery of the vehicles and asked for damages for loss of use while the vehicles remained in the custody of the affected claimants.

The Defence

The defence agreed substantially with the case as stated by the six claimants. The defendants admitted that all the claimants were appointed permanent secretaries who had signed contracts of service with the government for a fixed term of years. The contracts of the claimants were due to expire in June and July 2010. The defendant’s case is that government terminated the contracts prematurely on the grounds of a change of government and that this was a valid ground since it was enshrined in the written contracts of service of the claimants as one of the grounds for a premature termination.

On the issue of the different provisions of the contract of the 1st claimant, the defence’s case is that it was an irregular contract which was not endorsed by the Public Service Commission or approved by the previous Prime Minister and so could not be given effect.

When led in evidence by the learned counsel Ms L. Folaumoetui for the Attorney-General, 1st defence witness Ms. Ruth Liloqula who is Secretary to Cabinet said she instructed that the 1st claimant be paid three months salaries and entitlements in lieu of notice because his contract was not a standard one and that she had discovered anomalies in it. She added that she had found out that the contract was not endorsed by the Public Service Commission and could therefore not be honoured by government. She said she also asked the former Prime Minister about it and he told her that that he never approved the contract. The witness continued that the contract was drafted by one Ms. Karen Qalokale an Assistant Secretary to the Prime Minister who had also told her that she did not get any directives from the Prime Minister.

Under cross-examination by Dr. P. Tagini of counsel for the claimants, the witness said that the six claimants were given notices of their termination but that the termination letters sent to them did not state any reason for the termination. She then added that the reason was change of government. In answer to another question, the witness agreed that it was reasonable to state the reason for termination in the termination letters.

In answer to a question from the court, the witness said she thinks there is a regulation that all contracts of service must be endorsed by the Public Service Commission. She agreed that the procedure for entering into a written contact of service is that the contract is drawn up in the office of the Prime Minister and then the permanent secretary is brought in to sign it and that such was the case with the 1st claimant.

The 2nd witness for the defence John Saunana stated in his evidence that he wrote the termination letters to the claimants. When crossed-examined, he said that no reasons were given for the terminations and that he cannot answer as to what the reasons for the terminations were because he was not told of any.

The 3rd defence witness Ms Karen Qalokale told the court that she drafted the contract of 1st claimant based on instructions and a sample contract given her by her superior officers - the Secretary and the Deputy Secretary to the Prime Minister. When cross-examined, the witness said she believed that the 1st claimant’s contract received the approval of the Public Service Commission and that it is a valid contract.

Address by Claimants’ counsel

At the close of evidence, counsels for both sides addressed the court. On the part of Dr. Tagini, learned counsel for all the claimants he raised the following issues:

(1) Whether the Public Service Commission has the power to terminate the claimants.

(2) Whether the Public Service Commission complied with the requirements for terminating public servants.

(3) What are the implications of clause 23(1)(d) in the written contract of service of the 1st claimant?

In support of the first issue raised by him, Dr. Tagini argued that the Public Service Commission under S. 128 of this country’s Constitution has the power to appoint Permanent Secretaries. He continued that while the same Constitution is silent on the question of removal, it had been decided in the case of Sanga v Public Service Commissioner, that the Public Service Commission’s power to remove public officers is well-settled in this jurisdiction. Counsel was however of the view that the concurrence of the Prime Minister in the termination of a Permanent Secretary is not backed by any law.

On whether the Public Service Commission had complied with the requirements for terminating public servants in this case, counsel again referred to Sanga’s case and submitted that Kabui J, as he then was, had decided in that case that government must provide reasons to terminate. The learned counsel also cited the case of Afeau v Judicial and Legal Services Commission where it was held that the position of the Prime Minister had been made clear to the plaintiff before his termination and that the court found Mr. Afeau’s removal lawful.

Learned counsel for the claimants then cited a long list of cases some of which were Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106@ 109-10; Murdock v New Zealand Milk Board [1982] 2 NZLR 108; the Nauruan case of Keke and Cloduma v Re Public Service Appeals (1987) 13 CLB 35.

All these cases raised the issues of the rules of natural justice and in line with the decisions in these cases; counsel submitted that one of the principles of natural justice is that adequate information must be provided about grounds or reasons for any actions taken. He continued that this meant that sufficient details of the grounds for taking such action must be provided to enable the claimants make their defence.

Learned counsel then submitted that the fact that the letters of termination sent to the claimants did not give any reasons for their terminations is a clear breach of natural justice. This being the case, he argued, the actions of the Public Service Commission and the Office of the Prime Minister in this regard are unlawful. He then cited the case of Shillingford Darnell v Public Service Commission and Attorney-General (1989) 15 CLB 1168 as quoted in Willie v Public Service Commission (1993) VUSC4 and submitted further that the claimants were not given an opportunity to be heard, thus rendering the terminations void and of no effect. He pointed out that there were distinctions between the present case and those of Sanga and Afeau in which two cases the Courts of Solomon Islands found the terminations properly done. The claimants here were not afforded the opportunity to be heard, he said. Counsel also submitted that based on regulation 74, the Public Service Commission has power to terminate but is duty-bound to give reasons and allow the claimants thirty days to respond. In other words the claimants were entitled to be given both notices and reasons for termination.

On the issue as to whether there was a breach of the contract of the 1st claimant, learned counsel cited the parole evidence rule and the cases of HP Kasabia Brothers Ltd v Reddy Construction Co Ltd (1977) 23 FLR 235 and Hawrish v Bank of Montreal (1969) 2 DLR (3d) 600.

Counsel submitted that based on the parole evidence Rule, the defendants cannot introduce facts which suggest that they did not intend to be bound by clause 23(1)(d) of the contract of service of the 1st claimant. The argument of the defence that the contract had not been approved by the Public Service Commission or that it was a mere administrative blunder is irrelevant. The said contract must be presumed to capture the intentions of the government which drafted and executed it.

Address of Defence Counsel

On the part of the defendants, the learned counsel Ms. L. Folaumoetui on behalf of the Attorney-General raised four issues as follows:

(1) Whether the claimants are public servants and if the rules and regulations of the Public Service govern them.
(2) Whether change of government as stipulated in clause 23(1)(d) in the 1st claimant’s contract and clause 22(1)(c) in the contracts of the other claimants is a valid ground in law for purposes of prematurely terminating the contracts of public servants.
(3) Whether the contract signed by the 1st claimant is valid and if clause 23(1)(d) of the said contract is binding and therefore entitling the 1st claimant to be paid for the remainder of the contract period.
(4) Whether the claimants were wrongfully terminated due to the failure to provide reasons for their termination or to give them notices.

Learned counsel for the defence then submitted that under SS 40 and 144 of the Constitution, the claimants are all public officers. However, she said, the last clause, [clause 25 of the 1st claimant’s contract and clause 24 of the contracts of service of the rest of the claimants] clearly prescribes that the terms and conditions of their employment shall be governed by the said contract of service thereby taking them outside the rules and regulations of the Public Service Commission. All references and determinations as to the claimants’ employment status would be covered by their contracts of service except where a matter in their employment arises which is not covered by the written contracts.

In arguing her second issue, learned counsel submitted that when a new government comes into power, it has a right to remove certain office holders appointed under a previous government on political grounds and to replace them with their own political appointees. Change of government, she argued, is therefore a valid ground for termination. She referred the court to clause 6(c) of the contracts of the claimants and noted that the clause also mentions premature termination in case of a change of government.

On the question of whether the contract signed by the 1st claimant is valid and especially if clause 23(1)(d) of the said contract is binding on government, learned counsel argued that the clause is discriminatory in relation to the contracts of the other five claimants since their contracts did not carry a similar provision. Counsel submitted that because the 1st claimant’s contract had a clause which was different from the other contracts, the contract of 1st claimant is void.

As to whether the claimants were wrongfully terminated because they were not given reasons for their terminations or given notices before the terminations, learned defence counsel argued that the contracts did not carry such stipulations. She continued that if the claimants were terminated under the part of clause 23(1)(d) of 1st claimants contract and clause 22(1)(c) of the contracts of the other claimants which referred to PSC regulations part VII and VIII then the procedures for the PSC disciplinary measures would be followed. She then submitted that where the reason for termination was change of government, the PSC regulations did not apply. She submitted also that there are no provisions in the contracts requiring that government give a reason for termination or state under which clause of the contract the termination is based. She then cited the cases of Wheeler v Attorney-General [1989] SBHC 15. and Australian National University v Arthur Lee Burns.

In relation to case no. 48/2008, learned counsel informed the court that all the vehicles have been returned by the four affected claimants namely Francis Lomo, Israel Wore, Peter Hauia and Charles Viva. She referred the court to the decision of Goldsbrough J. in the mater of CC19 and 39/2008 Djokovic v Attorney-General. She argued that the facts of that case are similar to this one. She submitted that the four affected claimants ought to pay damages to government for loss of use of the detained vehicles at the time they were kept by the affected claimants.

Review by Court

I now come to review facts, arguments and law presented in this consolidated case.

It is not disputed that each of the six claimants was appointed a Permanent Secretary by the Solomon Islands Government. Following the said appointments, the claimants were among other appointees who signed contracts/agreements of service which stipulated that the appointments were for a term of years. These contracts or agreements of service were drafted and prepared by the Office of the Prime Minister and the claimants were only invited to look at the contract documents and to sign them. The Secretary to the Prime Minister and Cabinet in all cases signed the contracts on behalf of the Government of Solomon Islands.

The 1st claimant was first appointed Permanent Secretary in January 2006 for a term of one and half years. When that contract expired in June 2007, he was reappointed and asked to sign the contract in issue here in June 2007 which was to terminate in June 2010. It was a fixed term contract for three years. The five other claimants were also appointed permanent secretaries. Each of them signed a contract of service sometime in July 2006 for a fixed term of four years whose termination dates were July 2010. On January 13 2008 each of the six claimants received a letter informing them that their individual contracts had been terminated prematurely. The letters were all written by one John Saunana who is the 2nd witness for the defence. The identical termination letters informed the claimants that they may pursue their termination entitlements with the Accounts Section of the Office of the Prime Minister and Cabinet.

When the claimants went for the said termination entitlements, they were paid monies representing their salaries and allowances for three months. They protested these payments and briefed a solicitor who proceeded to exchange letters on their behalf over the manner of their terminations and the termination entitlements offered them.

Meanwhile four of the six claimants who were allocated government vehicles while in service as Permanent Secretaries did not return the said vehicles after receiving their termination letters. The vehicles were however returned or recovered between six and seven weeks later.

In sorting through the maze of filed documents, exhibits, oral evidence, submissions and authorities presented by both sides, four critical questions beg for answers which answers will determine this case. I formulate these questions as follows:

(1) Is the Contract of Service of the 1st claimant void by reason of the fact that the provisions of some of the clauses therein differed from those in the contracts of the other five claimants?
(2) What is the true meaning and construction to be placed on clause 23 of the 1st claimant’s contract and clause 22 of the contracts of the other claimants?
(3) Were the terminations of the claimants proper in the absence of any reason given and a failure to state under what clause in the contracts the terminations were made?
(4) Is the defendant entitled to damages for loss of use of the official vehicles allocated to four of the claimants which were not returned to government until six or seven weeks after the termination?

Is the contract of 1st Claimant valid?

The answer to the first question can be found in one of the most basic and elementary doctrines of contract law known as privity of contract. This doctrine provides that where parties have entered into a contract, persons who are not party to it cannot be affected by the contract. A contract binds those who are party to it. The contract of service between the 1st claimant and the Solomon Islands government cannot affect the contracts of service entered into by the other five claimants nor can the contracts of the other five affect that of the 1st claimant.

Every contract relates principally to these who are parties to it. Neither in pleadings, sworn statements nor oral evidence did the defence plead non est factum in respect of the contract of the 1st claimant.

Evidence before the court is that the contract was prepared by the defence and the 1st claimant was only invited to read and sign it. In other words, the defence made the terms and conditions of the contract of service in question. The 3rd witness for the defence Ms Karen Qalokale told the court that she prepared the contract using a sample given to her for that purpose by her superior officers – the Secretary and the Deputy Secretary to the Prime Minister and Cabinet sometime in May or June 2007. After preparing the contract as instructed, it was duly signed by the parties.

Ms Ruth Liloqula, Secretary to Cabinet since August 2007 was the 1st witness for the defence. She told the court that after the terminations, she discovered that the 1st claimant’s contract was not endorsed by the Public Service Commission. According to her testimony she spoke to the former Prime Minister about it and he told her that he did not approve the contract of the 1st claimant. When asked by the court whether the endorsement of contracts of service by the Public Service Commission is a practice or a regulation, the witness said she thinks it is a regulation. She did not tender the said regulation or give evidence as to what form such an endorsement by the Public Service Commission would take.

In his own sworn statement dated June 20 2008, John Saunana, Deputy Secretary to Cabinet deposed that the Cabinet did not approve clause 23(1) (d) in the contract of the 1st claimant.

The confusion and lack of clarity apparent in the stories and depositions of defence witnesses with regard to the contract of the 1st claimant is not lost on the court. These conflicting stories add no value but rather do damage to the case for the defence. One defence witness says the contract was not approved by the PSC, another says it was not approved by cabinet and yet the third says she prepared the contract as she was instructed by her bosses in the Prime Minister’s office. As submitted by learned counsel for the claimants, the parole evidence Rule applies to restrict the Solomon Islands government and the 1st claimant within the four walls of their agreement.

I find that the contract of the 1st claimant is a valid contract under the law.

Provisions of the termination clauses

In addressing the second issue formulated by the court as to the true meaning and construction to be placed on clause 23 of the 1st claimant’s contract and clause 22 of the contracts of the five others claimants, I would like to avert our attention to clause 1 which is identical in all the contracts of service in question.

Clause I (1) states that the contract is for a term of years. In the 1st claimants contract it is three years and in all the other contracts four years.

Clause 1(2) provides that the contracts may be extended by mutual agreement between the parties or may be terminated under clauses 23 and 24 for 1st claimant’s contract and clauses 22 and 23 in the contracts of the other claimants.

In examining the issue of the terminations of the claimants therefore, we must have recourse to these mentioned clauses in the contracts of service.

A cursory look at clauses 23 and 24 of the 1st claimant’s contract reveals that clause 24 is concerned with dismissal. Similarly clause 23 of the contracts of the other claimants is about dismissal. Clause 23 of 1st claimant’s contract and clause 22 of the other contracts are the clauses which deal with termination and are therefore relevant for our purposes here.

For ease of reference, I hereunder reproduce these clauses as follows:-

{Clause 23 of 1st claimant’s contract}

"23. TERMINATION OF AGREEMENT

(1) Subject to clause 24 (relating to dismissal) the Government may terminate this AGREEMENT:-

(a) by giving the officer three months’ notice in writing of the date upon which the Agreement will be terminated, and compensate the officer the full amount of personal emolument (salary and any other benefits) for the remaining period of the contract or six months whichever is less.

(b) at anytime by giving the officer in lieu of notice, the outstanding emolument as per (a) above for the remaining period of the contract.

(c) in the event of the officer being certified by a Government Medical Officer as medically unfit for service under this Agreement, (for reasons other than his own misconduct), by giving him three month’s notice in writing of the date upon which the Agreement will be terminated or three months salary in lieu of notice.

(d) In the event that the officer is terminated prematurely contrary to PSC Regulations part VII and VIII and clause 24 or is terminated prematurely by a change of Government the officer will be paid the remaining period the of the contract.

(2) The officer may, after the expiration of six months service, terminate this Agreement:-

• (a) by giving three month’s notice in writing of the date upon which he/she proposes to terminate the Agreement; or
  
• (b) at any time by paying to the Government three months basic salary in lieu of notice."
  

{Clause 22 of the contracts of the five other claimants}

"22. TERMINATION OF AGREEMENT

(1) Subject to clause 23 (relating to dismissal) the Government may terminate this Agreement:-

• (a) by giving the officer three months’ notice in writing of the date upon which the Agreement will be terminated, and shall compensate the officer the full amount of personal emolument (salary and any other benefits) for the three months notice period.
  
• (b) in the event of the officer being certified by a Government Medical Officer as medically unfit for service under this Agreement, (for reasons other than his own misconduct), giving him three month’s notice in writing of the date upon which the Agreement will be terminated or three months salary in lieu of notice.
  
• (c) In the event that the officer is terminated prematurely contrary to PSC Regulations part VII and VIII and clause 22 or is terminated prematurely by a change of Government, the officer will be paid 3 months in lieu of notice.
  

(2) The officer may, after the expiration of six months service, terminate this Agreement:-

• (a) by giving three month’s notice in writing of the date upon which he/she proposes to terminate the Agreement; or
  
• (b) at any time by paying to the Government three months basic salary in lieu of notice."
  

Clause 23 of 1st claimant’s contract provides for termination by either government or the officer. Under Clause 23(1), provisions are made for the terms and conditions for termination by Government while clause 23(2) provides for termination by the officer.

Examining termination by government under 1st claimant contract

Under Clause 23(1) (a), government may terminate under any of these four conditions;
The first is by giving the officer three months notice in writing and in addition compensating the officer with the full amount of his salary and other benefits for the remaining period of the contract or for six months whichever is less.

Under the second condition the contract may be terminated at any time without notice by paying the officer in lieu his outstanding salary and benefits for the remaining period of the contract.

Thirdly, the contract may be terminated where the officer is certified medically unfit for service although he had not been guilty of misconduct, by giving him three months notice in writing or three months salary in lieu of notice.

In the fourth instance which is stated in clause 23(d), the provisions in my view hardly make any sense. The phrase "in the event that the officer is terminated prematurely contrary to PSC regulations Part VII and VIII and Clause 24", is really curious. I have looked at PSC regulations Parts VII and VIII. Part VII deals with acts constituting misconduct and criminal offences, how to report them, procedures for inquiring into them and punishment. Part VIII of the regulations deals with inefficiency and steps to be taken where an officer is adjudged inefficient. It is the view of this court that if that part of Clause 23(d) was drafted to take into account situations where the officer is terminated or dismissed on grounds of misconduct or criminal conduct or inefficiency under PSC regulations, then the drafter has failed to convey that meaning. The word "contrary" in that clause makes nonsense of the first part of the clause.

The learned defence counsel had submitted and quite rightly too that going by the provisions of the last clause in each of the contracts of service of the claimants, all references and determinations as to the employment status of the claimants would be covered by the written contracts except where a matter arises which is not covered by the written contracts. Why would PSC regulations be cited especially in a way that does not convey any meaning in a contract of service in which the terms and conditions of the contract are spelt out?

The second leg of clause 23(d) provides that "if the officer is terminated prematurely by a change of government, he will be paid for the remaining period of the contract". Nothing in this clause says that the officer may be terminated prematurely when there is a change of government or due to a change of government. When the clause uses the phrase "by a change of government", it means that somewhere in the contract or applicable relevant laws, a change of government will operate as an automatic termination of employment. With the greatest respect, change of government does not constitute a ground for termination under the provisions of this contract. If the drafter intended to make change of government a ground for termination under this contract, he would state it clearly and unequivocally. He has not done so. I will here apply the contra proferentem Rule – a rule of contractual interpretation which provides that an ambiguous term will be construed against the party that imposed its inclusion in the contract. A drafter must be as clear and explicit as possible and take into account as many foreseeable situations as he can. I am minded to find that the provisions of clause 23(d) of the contract of the 1st claimant are confused, muddled and bereft of meaning and it would be dangerous for this court to attempt in anyway to redraft it or to ascribe any meaning to it.

By the same token, I see that clause 22 of the employment contracts of the five other claimants is identical with clause 23 which I have already considered above except that the said clause 22 provides for three months benefits to be paid in lieu of notice. I find also in respect of the contracts of the group of the five other claimants namely Peter Hauia, Naeri Alamu, Dr. Israel Wore, Dr. John Roughan and Charles Viva that clause 22 in their respective contracts, does not provide for termination by reason of change of government. The clause does not make change of government a condition for termination. No other clause within the contract does.

In the Nigerian case of Friday Abalogu –v- Shell Petroleum Nig Ltd (2003)10MJ SC p.60 @63, it was held by the Supreme Court that the Court in construing the relationship of the parties to a written agreement must confine itself to the plain words and meanings which are derivable from their rights and obligations hereunder.

Were the Claimants’ terminations proper?

On the issue of whether the terminations of the claimants were proper when no reason was given for the same and it was never stated under what clause of their contracts of employment the terminations were based, I start by acknowledging that at Common Law, an employer may terminate his employee without notice or reason. I will quickly add that the contracts of employment on which this action is founded, stipulate conditions for termination of the claimants. We cannot therefore abandon their provisions to look to the Common Law. I have set out and examined in details the clauses in the contracts which state the conditions for termination. None of these terms and conditions for termination appears to have been complied with in terminating the six claimants. Where a termination is done in accordance with the terms of the contract, none of the parties to the contract should have any complaints. It was decided in the case of Ilodibia –v- Nigeria Cement Company [1977] 7NWLR part 512 p.177 that where an employer has terminated a servant in breach of the terms of the contract, the servant may consider the contract at an end and seek redress. He may in seeking such redress sue for wrongful termination based on the complete disregard of the terms of the contract of service as the termination amounts to repudiation by the master and the servant’s remedy is in an action in damages only.

The defendant was clearly obliged in prematurely terminating the claimants to do so only as provided for in the contracts governing their services. It is pertinent to again refer to the last clause in the contracts which provides for the applicability of "any other relevant laws having application in the Public Service". There have been no representations here that there are other laws applicable in the Public Service which permitted the terminations. I do not believe that there are any such laws.

It is the view of this Court that where an employment is governed by a written contract of service in which the conditions for terminations are clearly spelt out, it is proper and critical to state the reason for premature termination. Where the reason is not expressly stated, it is sufficient to state under which clause in the contract the termination is based. By stating the reason or relevant clause of the contract, the employer or employee as the case may be shows he has fulfilled one or more of the conditions that empower him to terminate the contract. In the case of Sanga –v- PSC and Baiabe – decided in the High Court of Solomon Islands on April 30 1999, Kabui J as he then was, underscored the importance of giving reasons for early termination. Also in Abalogu v Shell op cit, the Court found that where the right to determine a contract depends on the performance of a condition precedent, the party seeking to exercise his right of determining the contract must first establish that the prescribed precedent is fulfilled.

I observe that the termination letters stated that the terminations were done under S.128 (1) & (2) of the Constitution and S.3 (d) as amended of the Public Service Act. The sections of the Constitution cited do not relate to terminations at all and neither does S.3 (d) of the PSC Act. Even if they did, the contract documents have provided conditions under which a termination may be done. Why was it necessary to go in search of constitutional provisions and the PSC Act to effect the terminations? Even in spite of citing the constitution and PSC Act as basis for the terminations, the writer of the termination letters Mr. Saunana in a sworn statement on 20 June 2008 deposed in the second paragraph that "the applicants were dismissed on the ground of change of government". Why did he not state so in the termination letters? Yet on 02 December 2008 less than six months later, Mr. Saunana testified in Court on oath that "there were no reasons given for the termination. No reasons were given me. I cannot answer as to the reasons for their termination". The glaring inconsistencies in the evidence of the defense are unfortunate. Even if a change of government properly constitutes a ground for termination under the claimants’ contracts, the claim of the defense that change of government was the reason for the terminations can be no more than an afterthought.

It is my considered view therefore that the termination of the claimants’ contracts were improper and constituted a breach of their employment contracts. In the case of Luiramo –v- Attorney-General (unreported CC 321/2006 by Palmer, CJ.) where the applicant who was on a fixed-term contract was prematurely terminated as Chairman of Investment Corporation of Solomon Islands (ICSI), Palmer CJ held that Luiramo was entitled to be compensated for the balance of the two years period lost due to the termination which included remuneration, allowances and other benefits due to him under the Second Schedule, paragraph 8 of the ICSI Act.

Are the rules of natural justice applicable?

I will briefly examine the submissions of Dr. Tagini as to the applicability of natural justice in the case of the six claimants. I do not agree that the rules of natural justice are of any relevance here. While it is my finding that it is critical to state the conditions for the claimants’ terminations in their termination letters, the rules of natural justice are not breached in the absence of these conditions. What is breached as I have earlier stated is the contract of service. I do agree that natural justice issues would arise if the claimants were dismissed on grounds of misconduct or criminal acts without any opportunity given them to be heard. The rules of natural justice could also be invoked if there is the appearance of bias in treating allegations of misconduct against them.

CC48/08

In Suit No. 48/2008, the defendants claim from four of the six claimants damages for loss of use of four government vehicles detained by four of the claimants after their terminations.

Learned counsel for the defence Ms L. Folaumoetui has informed the Court that the four motor vehicles in question have been recovered or returned less than two months after the termination of the affected claimants. In asking for damages for loss of use, learned counsel referred the court to the case of Djokovic –v- Attorney-General where Goldsbrough J had held that Djokovic was wrong to retain a government vehicle on the excuse that after leaving his job, government still owed him money. The Court found that Djokovic had no lien over the vehicle and ordered that he return it to the owner. It was also his Lordship’s decision that there is no general lien in relation to motor vehicles provided as terms of an employment contract.

In the present case, four of the claimants retained government vehicles after their terminations. They were however entitled to some salaries and allowances beyond their termination dates due to the abrupt manner of their terminations. It is in evidence that the affected claimants have collected some money that government agreed to pay them as termination benefits. There is also evidence that the claimants who had kept their official motor vehicles were denied part of the termination benefits described as vehicle allowance.

In considering this matter, I bear in mind that learned defence counsel had asked for damages for loss of use to be calculated at SBD50 per day. The Court at the conclusion of addresses in this consolidated case called for additional submissions on certain issues which had not been clarified during the trial and adjourned for additional addresses. On the adjourned date, learned defence counsel re-opened submissions on the amount of damages sought against the affected claimants. She now asked for the damages to be calculated at SBD500 per day for eighty-eight days per vehicle. In arriving at a decision on this claim, I note that in the evidence of the 2nd claimant, Peter Hauia, he told the Court that he returned his official vehicle in January. This was not rebutted. I also observe that on the day learned counsels first addressed me 16 February 2009, learned defence counsel informed the Court from the Bar that the motor vehicles were recovered on the following dates: 20 February, 21 February, 22 February and 4 March 2008. I do not understand why David Kubolu, Senior Works Officer/Transport pool of the Ministry of Infrastructure Development, Honiara would make a sworn statement on 6 March 2009 to say that the vehicles were retrieved from the four affected claimants on 10 April 2008 and that the claimants in question had kept the vehicles for eighty-eight days. In the light of learned counsel’s information to the Court, Mr. Kubolu has clearly perjured himself. I expect better from a responsible officer. The Court is also informed that vehicle allowances for three months which were approved for payment were denied the four officers who did not return the official vehicles in time. Much as I agree that upon termination the officers ought to return the official vehicles assigned them, I believe that a decent interval should be allowed the claimants to return government property in their possession and assigned for both official and personal use. If an officer occupied quarters allocated by government, would he then be expected to move on the day he gets a termination letter which states that the termination is with immediate effect? Of course such an expectation is unreasonable.

As to the calculation of damages for loss of use of the vehicles, the affected claimants have not made any submissions on this score. I hold that the vehicle allowances of about SBD9964.28 denied the four claimants is enough compensation for detention of the vehicles. The vehicles were recovered between six and seven weeks after the officers were terminated. As I have stated earlier, they were entitled to a decent interval in which to return the cars.

Conclusions and findings

In the light of the foregoing review of this case I find as follows:

1. The contract of service, also styled "Agreement of Service for Permanent Secretary", entered into by the Solomon Islands Government and the 1st Claimant Francis Lomo on 8 June 2007 is a valid contract.
   
2. The provisions of clause 23 (1)(d) in the contract of 1st Claimant and clause 22 (1)(c), in the contracts of the five other claimants on record due perhaps to poor, careless and shoddy drafting are useless and convey no meaning whatsoever and cannot therefore be relied upon by any of the parties in this case or considered by the Court.
   
3. Each of the termination letters dated 13 January 2008 and addressed and sent to the each of the six claimants on record constitute a breach of the contract or agreement of service between the Government of Solomon Islands and the particular claimant terminated, there being no evidence that the termination was based on any provisions of the contract or agreement of service.
   
4. In CC48/08, the three months transport allowances due to the four affected claimants in termination benefits and which were already withheld by the defendants, constitute adequate damages for the loss of use of the four motor vehicles over which the said claimants were sued.
   

Orders

It is hereby ordered that the defendants do pay to each of the six claimants on record namely Francis Lomo, Peter Hauia, Naeri Alamu, Dr. Israel Wore, Dr. John Roughan and Charles Viva general damages to be calculated on the basis of the sums of monies equivalent to the salaries and benefits of each claimant from the date following his/her wrongful termination up and until the date upon which the fixed term contract of the claimant was to expire.

It is also ordered that whatever sums have been paid to each of the six claimants as termination benefits are deducted from the general damages awarded to each of them.

Costs

The Defendant is condemned to pay the costs of this action

Honourable Justice Nkemdilim A. Izuako
Puisne Judge