Apaniai v Attorney General [2015] SBHC 100; HCSI-CC 10 of 2015 (27 November 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 10 of 2015

BETWEEN:

JAMES APANIAI
Claimant

AND:

ATTORNEY-GENERAL
Defendant

Date of Hearing: 15th October 2015
Date of Judgment: 27th November 2015.

Mr P. Afeau for the Claimant
Mrs S. Banurve for the Defendant

JUDGMENT

Faukona PJ: The Claimant was appointed as a High Court Judge and a member of the Court of Appeal of Solomon Islands on 1st April 2011. On 17th October 2014 he resigned serving 3 years, 7 months and 17 days.

2. The issue to be resolved is the long service benefit of $128,625.11 which the Claimant claimed. The long service benefit amount was calculated at 25% of his annual salary (147,000.00). Other reliefs sought in the claim had been abandoned except for this one which was formally pleaded in paragraphs 22, 23 and 24 of the claim.

3. In 1987, Parliament had passed the Constitutional Officers (Terms and Conditions of Service) Act, Cap 84. By S.3 of the Act the Minister (i.e., the Prime Minister) may make regulations in respect of the terms and conditions of service of Constitutional Office Holders.

4. On 30th July 2010 the Prime Minister endorsed the Constitutional Offices (Terms and Conditions of Service) (Puisne Judges) Regulation 2010 ("2010 Regulations") which came into force on 1st July 2010. Under the 2010 Regulations, the Prime Minister had prescribed the terms and conditions of service of the High Court Puisne Judges.

5. On 19th December 2013, the Prime Minister endorsed another set of Regulations for the Puisne Judges (2013 Regulations) which amended the 2010 Regulations by adding clause 29. The clause provided for payment of long service benefits to High Court Judges. Clause 29 read as follows;

"A long service benefit to be paid at 25% of the annual salary at the end of Puisne Judge's term of Office multiplied by the number of years served in that office".

6. It may appear that the Counsels in this case have not been able to identify legal basis to support their submissions and be comfortably rely on. I noted the tedious task to engaging in such research. This ought to be done because this case is first of its kind in this country. There has not been any case authority decided similar as this case previously. Therefore comparisons are made with the Regulation 10(1) of 2013 Regulations, General Orders in particular GO F 29 and Public Service Circular Memorandum NO.12/2014 which set out 15 years as eligibility criteria, that is lacking under Regulation 29.

7. The starting point is Section 107 of the Constitution which conferred power on Parliament to prescribe remuneration and allowances to Constitutional Post Holders. That function had been delegated to the Prime Minister by Section 3 of the Constitutional Officers (Terms and Conditions of Service) Act. It was the Prime Minister who endorsed the 2013 Regulation which provided for long service benefit to be paid to the judges.

8. On 10th August 2015, a further Regulation, Regulation 26 was endorsed which stated, "On completion of 7 years of continuous service, a Puisne Judge is entitled to a long service benefit of 25% of his annual salary".

9. The argument that long and dedicated service benefit provided under GO F29 (as amended by Public Service Circular Memorandum No. 12/2014) still applies to the Claimant, or the judges for that matter, is out of context. One stand out reason is that the GO provision together with the Circular memorandum No.12/2014 were not endorsed by Parliament or the Prime Minister, therefore do not govern the payment of long service benefit to the Claimant.

10. Another reason is that GO A 105 (b) (i) and (iii) stated that where alternative provision is made for a particular Officer of the Government in any Act or regulation or rule, by-law or order made by any Act, the General Orders do not apply. Regulation 29 is an alternative provision to GO F29 or circular Memorandum No-12/2014. This is further reinforced by GO A 115 which clearly and plainly stated where any conflict exists between law and General Orders, the law prevail. Indeed Regulation 29 must prevail.

11. The argument that no alternative provision applies to judges; in my opinion is contrary to the spirit of the Regulations. Nevertheless, I agree in part that some of the sections in the General Orders do apply to Judges. That is clearly illustrated by Regulation 23 of 2013 which stated, "A Puisne Judge shall be entitled to all other benefits available to public Officers under the General Orders or other regulations which are not covered under these Regulations".

12. The Regulation is plain and clear that Puisne Judges are entitled to other benefits available to public officers under the General Orders and regulation such as, income tax, internal and external medical treatments etc.

13. The practical interpretation of 2013 Regulations is that it provided terms and conditions of services specifically for judges, and General Orders applies equally to both judges and public Officers on certain terms only.

14. In the final analysis it is true to say that Regulation 2013 replaces or substituted General Orders F29. It does not compliment it. If GO F29 and Regulation 23 equally applied to Puisne Judges then at the end of their term a Puisne Judge would have to make a choice whether he is entitled to apply for long service benefit under Regulation 23 or under the General Orders. The problem that will be encountered is GO F29 as amended by Public Service circular No. 12/2014, expressly stated that eligibility criteria is of an unbroken service for a continuous period of 15 years. As it is, there are distinctive criteria's which cannot be equally apply to a Puisne Judge.

15. To allow such circumstance to prevail will create ambiguity and a state of confusion. Law normally operates to uphold and promote harmony and avoid attempting to give dual entitlements or rights to officers. In the end law must prevail in its application to a particular circumstance. There cannot be two provisions accepted at the same time, if do, law must prevail.

What does Regulation 29 mean in the Amended Regulations.

16. Regulation 29 does not apply to long service benefit applicable to all public Officers, but introduces a new benefit of eligibility of long term service benefit for Puisne Judges. It has nothing to do with Public Service Circular No. 12/2014 and has nothing to do with regulation issued under the authority vested on the Minister by section 4 of the Public Service Act.

17. However, the eligibility criteria were drawn from the public service format as illustrated by Public Service Circular No. 12/2014. The problem with Regulation 29 is it does not prescribe the period of employment before a Puisne Judge can be qualified or entitled to draw long service benefit.

18. In the absence of such, determination of eligibility is quite difficult to draw and ascertain. In my personal observation the words "long service" must at least reflect a minimum thought to describe whether a person has served for long period of time to be entitled to such long service benefit. Generally two or three or three and half years servicing in an employment is not long service in an ordinary language of Solomon Islanders. To be more specific a boundary must be drawn. A Puisne Judge is appointed on average of little more than fifty years of age or little less. The minimum age for retirement of a Puisne Judge is 60 years and the maximum is 70 years. With the service rendered for 3 years and eight months considering the retirement age is some years away, is service rendered for that period be describe as long service in an ordinary thinking Solomon Islander? I don't think so.

19. The Counsel for the Defendant chose Regulation 10 (1) of the Constitutional Offices (Terms and Conditions) (Puisne Judge) Regulation 2013 to establish what long service could mean. That regulation provides by granting long service leave of 30 consecutive days to Puisne Judge to be taken after completion of continuous five years of service.

20. Taken that as a minimum of long service, 3 years and 8 months the Claimant serve as a Puisne Judge is not long service so as to be entitled to long service benefit describe by Regulation 29.

21. Perhaps another important approach in viewing Regulation 29 is as part and partial of terms and conditions of employment contract between the SI Government and Puisne Judges. This approach required a specific investigation into the terms, whether on the face of it and its construction is sufficient to premise a course of actions, should it be breached.

22. For comparison purposes, Regulation 29 and Public Service circular No. 12/2014 were supposed to be constructed on the same basis but serve different category of public Officers. The circular is to serve general public service and Regulation 29 is for the Puisne Judges specifically. The two provisions run parallel and at no point in time they would be integrated or complemented.

23. The difference is that the circular provides for entitlement of General Public Officers after continuous unbroken service for 15 years, they are entitled to draw long dedicated service benefit. A similar provision, as expected, is regulation 29. Unfortunately whilst both provisions should serve on parallel line, Regulation 29 did not specifically state number of years of service before a Puisne Judge is entitled to draw long service benefit. In the absence of such I could able to ascertain that Regulation 29 is an incomplete term.

24. The law of contract describe an incomplete term as simply mean that an important term of the contract has not been completed or it has been left out of the contract. In such situation the same legal principles of certainty applies. Certainty is one of the important legal principles in the law of contract. The terms of the contract must be certain, that is, they must be clear, must not be vague and they must be complete. If there is uncertainty in a term of a contract, the court will declare the contract void for reason of uncertainty. Uncertainty only applies to important terms of the contract and not so to less important term which can be ignored or severed from the contract.

25. Entitlement to long service benefit is an important term of the terms and conditions of service of Puisne Judges. It is not a term with less status which can be ignored or severed. The terms are provided by law and regulations. If in any circumstance where the Puisne Judges do not agree with certain terms, they would make submissions for reconsideration by the Prime Minister by way of review. Therefore, Regulation 29 is part of the terms and conditions of services of employment of Puisne Judges. Therefore, I am of the opinion that law of contract should apply in the circumstances of this case.

26. In the Fiji Court of Appeal case of Fong Lee v Mitlal and Ram Kissun,[1] it is a case which concerns Clause 7 which expresses two things, that the vendor undertakes not to sell allotment No.8 to anyone other than the purchaser and shall give the purchase right to first refusal.

27. Marsack VP of the Fiji Court Appeal in his decision stated that in any event Ram Kissum cannot as matters now stand have specific performance. Specific performance of any contract will be granted by the Courts if necessary, that the agreement must be certain, fair and just in all its parts. If any of those ingredients were wanting the Court would not decree specific performance;

"In view of what I regard as the uncertainties in the terms of Clause 7, I am of the opinion that is incapable of enforcement on the basis set out in the judgment from which this appeal was brought. The law as I understand it, is that in a suit for specific performance and under clause 3 of the claim which Ram Kissum has filed in these proceedings, he asks for an order for specific performance – the Court is no entitled to read into the agreement any clause which is of there, which is not expressed or which does not logically and inevitably follow from the wording of the agreement itself".

"As the clause is drawn it is obscure and lacking in the essentials of a clear and ascertainable contract. No doubt the agreement between the parties concerning allotment No. 8 could have been ascertained and correctly set out in the document. But this has not been done".

28. The Vice President eventually suggested that, "only way for the Court is to supply the missing term. But this is not the function of the Court. It is a matter of deciding by the express term of the contract, or necessary inference there from, exactly what was agreed and what it is that the Court is asked to enforce. That to my mind cannot be done here. It is for these reasons that I would hold clause 7 void and unenforceable on the ground for uncertainty".

29. The case authority has supported my view that Regulation 29 is incomplete and unenforceable on the ground for uncertainty. The words "term in Office" does not refer to date a Puisne Judge resigns but refer to the date of retirement, see section 80 of constitution. It may only refer to the date of resignation, if resignation was done after eligible years of service expressly stated in the provision, then a Puisne Judge is entitled for long service benefit.

30. Later it was realized that Regulation 29 does not state number of years of service, therefore it was reviewed by Regulation 26 on 10th August 2015, by stating seven (7) years of continuous service before a Puisne Judge is entitled for long service benefit of 25% of his salary.

31. As I would reiterate again Regulation 29 was an incomplete term, and the Claimant cannot rely on it because it is incapable of being enforced, and cannot ask for specific performance. The term is obscure and lacking in the essentials of a clear and ascertainable term. For the reasons I express herein I must therefore dismiss the claim.

Order:

1. The claim is dismissed accordingly.

2. Cost to be paid to the Defendant by the Claimant.

The Court.

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^[1] (1965) 12 FLR 4, In the Fiji Supreme Court and Court of Appeal.