Ronia v Attorney General [2016] SBHC 177; HCSI-CC 207 of 2014 (30 September 2016)

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AND: ATTORNEY-GENERAL Defendant
(Representing the Public Service
Commission)

Faukona PJ: The Claimant had instituted this proceeding seeking judicial review to quash the determination by the Governor-General on advice of the Defendant to terminate the Claimant’s appointment as the Auditor General.

2.	By written agreement (Agreement of Service) on 15^th February 2011, the Claimant was formally engaged into office with effective from the beginning of 2010 for a term of 5 years.

3.	From the written agreement, and by his own knowledge, the Claimant was well versed with S.129 (1) and (2) of the Constitution and clause 23(b) of the Agreement of Service that a person holding the office of Auditor-General must vacate office when he/she turns 55 years of age.

4.	Realising the measuring rod alluded above, as an important factor, the Claimant then requested in mid-2011 to extend his employment as he was going to turn 55 years by 7^th July 2012. He did not receive any response from the Defendant but was verbally assured by certain high officers of the Defendant that he would complete his term.

5.	On 7^th July 2012, the Claimant attained 55 years of age but still not removed from Officer, and continued to hold the position of the Auditor General discharging his duties.

6.	On 15^th November 2013, the Defendant terminated the Claimant’s employment contract on the instruction by the Governor-General. The Claimant then left office soon after that, and commenced this claim for judicial review which was filed on 9^th July 2014.

	The issues:

7.	The issues to be determined are;

	1.			Whether the Defendant’s action breached the Claimant’s right to be heard;

	2.			Whether the Defendant acted in violation of the Claimant’s legitimate expectation;

	3.			Whether the Defendant wrongly took into account or acted upon the advice of the Governor-General;

	4.			Whether the Defendant by exercise of its powers was or acted unreasonably.

	5.			Whether the Claimant’s claim in relation to termination of his appointment is an appropriate claim for judicial review; and
	6.			Whether the Defendant is the appropriate entity to sue in this action.
	The Law.
8.	Section 129 (1) and (2) refers to, inter alia, that a person holding the office of Auditor General shall vacate his office when he attains the age of fifty-five years of age. Except where the Governor-General may permit to continue in Office until he has attained such later age, which the Governor-General and that person had agreed to.

9.	This case is a claim for Judicial review pursuant to Chapter 15.3.1 of the Rules which specifically premises on quashing order; an order quashing the decision of a decision maker.

10.	The time for filing a claim for a quashing order is 6 months, counting from the date the decision was made – Rule 15.3.8. Should a claim is filed outside of that time the Court by Rule 15.3.9 extend the time within or outside of the prescribe period for making a claim if it is satisfied that substantial justice requires it.

11.	By Rule 15.3.16, as soon as practicable after the defence has been filed and served the Court must call a conference to consider matters in rule 15.3.18, which the Court must be satisfied they have been fulfilled or it will not hear the claim. The requirements are:

	a.		The Claimant has an arguable case; and

	b.		The Claimant is directly affected by the subject matter of the claim; and
	c.		There has been no undue delay in making the claim, and

	d.		There is no other remedy that resolves the matter fully and directly.

12.	Any single requirement not been fulfilled by the Claimant, the Court will not hear the claim but dismiss it accordingly. It is an emphasis drawn to shift legal obligation upon the Claimant to show the claim has merit in it.

	Preliminary issues:

13.	There are certain issues which the Counsel for the Claimant describes as preliminary which he urges the Court to determine on the outset before the substantive issues in the claim. One is whether the claim for judicial review is an appropriate claim, and second whether the Defendant is an appropriate Defendant to sue.

	Judicial review as appropriate cause of action:

14.	The primary question here is whether the Claimant can bring a claim under private law for damages for breach of contract or for a judicial review as more appropriate. It would appear Counsels are opted by reinforcing arguments that parted different ways. The Counsel for the Defendant based his arguments on sufficient interest which may give rise to the issue whether an applicant has sufficient interest to support his claim for judicial review and whether by giving concession at conference precluded re-raising of the issue again in the substantive review.

15.	On the other hand, the Counsel for the Claimant lounge a massive submission with all the relevant facts and laws which are necessary to consider in the substantive issue, of which the question stands at whether the act of repudiation of the agreement of service of the Claimant was lawful or not. At the end therefore, concluded that the Claimant had been unlawfully terminated from his appointment.

16.	There is no simple clear cut and direct answer to this. However, I am optimistic by my respectful view, though may not be acceptable, that claimant has a choice. Either he can institute a claim under private law for breach of contract with consequential reliefs for damages and so on, or claim for judicial review which upon finding that the decision maker is not a proper authority to decide, or had wrongly repudiated the agreement of service, consequential order for relief may flow from such wrongful act. The result will almost be the same, except in judicial review the discretion is on the Court whether to reinstate the Claimant or not, and may of course quash the decision of the Defendant.

17.	As such, the issue of sufficient interest or locus standi or standing plays a minimal role. It would be mischievous to argue on an equal plain footing, with the same background of facts and law, that the claimant does not have sufficient interest in a judicial review claim but does in a private law suit claim.

18.	I noted the (White Book) The Supreme Court Practice 1999 Volume 1, paragraph 53/14/24 which the Counsel for the Defendant made reference to, that the issue of locus standi or sufficient interest be dealt with as a preliminary issue in major and complex cases. The material further stated that if leave is granted this will not act as a letter on the Court’s power to grant or refuse the substantial relief sought in the application.
19.	There is no question about the common law standing and the fact that the issue has been re-raised does not preclude the Defendant in doing so in this hearing.

20.	The fact of the matter is that a decision had been made by the Public Service Commission as reflected in the Permanent Secretary’s letter on 15^th November 2013 upon directives from the Governor-General (as it may), that the Claimant’s occupancy of the Auditor General’s post is unconstitutional. The question is whether the powers of termination were conferred upon Governor General or the Public Service Commission. That will be discussed in later Course of this judgment.

21.	Meantime, the Claimant was affected by that decision hence have sufficient interest to come to this court to seek judicial review of that decision. He chooses a course of action to take, seeking whether repudiation of the Agreement of Service is lawful, if not, then consequential reliefs for damages flow from it. In my perception, in either course of action, the Claimant has standing to come to Court and seek remedy.

22.	To be more specific I refer to the case of SMM Solomon Islands Ltd & Ors V AG and Ors^[1], Brown J adopted the authority from R v Lord Chancellor, Exparte Hibbit & Saunders (a firm)^[2];

		“...that where a conduct involves no exceptional feature beyond the performance by a public body of normal commercial activity will not be pursuant to common law rights to contract uncircumscribed by statute, the activity will not be amenable to judicial review.”
23.	What the case is featuring is that in a non-complex and normal case, rights prescribed in contract case premise on nothing beyond performance by public body, is not amenable to judicial review. In this case there was an agreement of service executed by the parties, beyond that is the operation of Sections 108 (1) and (2) of the Constitution. As it appears to be, there are rights prescribed in the agreement of service and also responsibilities and functions circumscribed by the Constitution. In such circumstances the outcome could be that the decision of the Defendant is amenable to judicial review.

	Appropriate Defendant to sue:

24.	The argument advanced by the Counsel advocate for the Claimant is that the Defendant in this case is not the decision maker by virtue of Section 129 (2) of the Constitution, but the Governor-General is, not the Public Service Commission. Notwithstanding Section 129 (7) (a) of the Constitution, the Commission’s power is limited to advisory function only.

25.	On the outset, it has to be acknowledged that the principle universally applied, as a practice or convention, is that the appointing authority has the same power and authority to terminate a contract of employment, or as in the current case the agreement of service. See Afeau V Judicial Legal Service Commission page 9, paragraph 3.

26.	The appointing authority in this case is the Governor-General acting on advice of the Public Service Commission - see Section 108 (2) and Section 129 (7) (a) of the Constitution. In conjunction to that authority, Section 129 (2) can be read as explicit implication where the Governor-General may permit a person who attained the age of 55 years to continue in office until such time later.

27.	This issue is supposed to be a fundamental basis upon which this case premises and should be treated as substantive issue; it is the root of the claim for judicial review. I agree to the suggestion floated by the Counsel representing the Defendant.

28.	However, Mr Pitakaka’s view on Section 108 (2) is that it confers formal power to an office, in this case, the Governor General, to exercise but acting on the advice of another office (Public Service Commission); the real power therefore vests upon the office giving the advice. In aid of his argument, Counsel refers to the case of Afeau V Judicial & Legal Service Commission^[3]. At page 10 paragraph 2 the Court stated,

		“I hold that the Commission of Judicial Legal Service was entitled to accept that the Prime Minister could validly advise the Commission to remove the Attorney-General and that the Commission must follow the advice”.

29.	In distinguishing the above case from Section 31 of the Constitutional, Section 31 (1) clearly states that the Governor-General in exercising his functions shall act in accordance with advice of the Cabinet or of a Minister acting under the General authority of the Cabinet except in cases where he is required by the Constitution to act in accordance with the advice of any person or authority, other than Cabinet or in his deliberate judgment.

30.	My interpretation of Section 31 (1) is that the Governor General must act in accordance with the advice of the Cabinet or the Minister acting under the authority of the Cabinet. However, it is an exception, which requires the Governor General whether to act on the advice of other persons or authority as required by the Constitution. In other words, in such circumstances the Governor General is not obliged to exercise that function in accordance with the advice of that person or authority, he has discretion whether to act on such advice or not, depending on his own deliberate judgment.

31..	In deed, Section 31 (1) of the Constitution has well outline and define the function of the Govern-General. In circumstances where he received advice from Cabinet or a Minister authorized by the Cabinet, the decision maker is the authority with advisory function, that is the Cabinet and the Minister. In a situation where advice is received from other persons or authorities the Governor General is the decision maker because of the discretionary function he exercises whether to act upon that advice or not, that is my opinion.

32.	In this current case, I am of the view pursuant to Section 31(1) of the Constitution the Governor General is the decision maker. The questions whether he should be a party in this case or not is rather cloudy. This is the Claimant’s case. He decides who the defendants are. To argue now that the Governor General should be included as a party is more than late. Indeed there was no advice placed before him to act upon. The directive which might have probably be given to the Public Service Commission prior to the letter by the Permanent Secretary, cannot be construed as demonstrating wrongful reversal of power, in that it appears to convey the Governor General was advising the Public Service Commission to terminate the appointment of the Claimant.

33.	However, I am persuaded to construe the letter properly. In paragraph (1) which the Claimant said the Governor General actually gave directives, therefore reverse the powers in S.129(2) of the Constitution. In my humble opinion, if there was indeed a letter of directive from the Governor General (no such letter was exhibited), the paragraph merely was reminding the Public Service Commission that the Claimant by continuing occupying the position as Auditor General, after attaining the age of 55 years, is unconstitutional. At the same time if the directive was intend to be read by the Claimant; also reminded him that occupying the post of Auditor General whist his age had gone beyond 55 years was not allowable by the Constitution. 34. In paragraph 2, the Claimant was informed to vacate office immediately while the Commission and the Ministry of Public Service pursue the intention to facilitate his contract for another term (paragraph 3). Whether the facilitation was done or not, was an impression, which is subject to inquiry, and this court is not informed of any progress.

35.	I noted the case of Council of Civil Service Unions and Ors V Minister for Civil Service^[4] referenced to by the Counsel for the Defendant. The case sets out four tests in relation to the scope of judicial review which is defined by the subject matter usually a decision empowered by public law.

36..	Upon perusing that case I am able to hold that both Officers were empowered by public law, the Constitution, to make administrative decisions. When one is vested with advisory capacity, and the other acted upon it, the scope is well within Section 31 of the Constitution of which I have well narrated above.

	Did the Commission render advice to the Governor-General under Section 129 (7) of the Constitution for Claimant to be removed.`

37.	Section 129 (2) provides for removal of the Auditor General. There are three scenarios, but the most applicable one to this case is in respect of the Auditor General vacating Office when he attains 55 years of age. The same term is repeated by clause 23 of the Agreement of Service which actually makes reference to Section 129 (2) of the Constitution.

38.	Undoubtedly, with the functions as expounded in that provision, it is expected that the Governor General would make a formal removal or termination, on advice when the Claimant attained 55 years with no extension of tenure.

39.	This argument is the stand the Claimant premises on. I agree that is the correct interpretation of the relevant provision of the Constitution.

40.	However, notwithstanding the relevancy of that argument, the question to pose is, was that what was exactly occurred as expected in this case?

41.	The reason for vacating the office was because the Claimant had already attained the age of 55 years as of 7^th July 2012. The reality is that the Claimant had continued to perform functions as Auditor General for one year and four months, and without extension of tenure, after he had attained 55 years of age.

42.	The Claimant’s argument was that a letter was served on him after the Governor-General had given directives that the continuing occupancy of the Auditor General’s post by the Claimant was unconstitutional.

43.	There are traverse of arguments by Counsels which contrary to one another in relation to the nature and legality of directives. In fact the interpretation of the letter had prompted adverse views from Counsels.

44.	In the end, what could have enhanced and accepted in my view is this, having had prior knowledge of clause 23 of the Agreement of Service, corresponding to attainment of 55 years of age, it is incumbent on the claimant to vacate the Office voluntarily. If, as reflected in this case, that he had requested extension, it would be proper in my view, to wait outside of Office until he receives a formal reply to his application for extension. To continue remain in Office after attaining 55 years technically is occupying the Office unconstitutionally. And this is what the Claimant had done for one year and four months. As early as that time, the Claimant could have solemnly consulted a lawyer for advice. It is very significant because Section 31 of the Constitution has conferred discretion upon the Governor General to exercise whether to grant extension or not.



45.	In my own interpretation, the letter by the Permanent Secretary did not feature a direction for termination or revocation of the Claimants appointment but featured vacation of Office. It was a directive without source of proof of its authenticity, hence was mere instruction to check on whether the Claimant had vacated the Office since he had attained the age of 55 years. It was the responsibility of the Public Service commission to affirm what the Governor General had directed, and whether it had not been dealt with. If not, the Public Service Commission will decide what would be the nature of advice to be conveyed to the Governor General. In this case there was nothing done.

46.	Instead, the Public Service Commission then directed the Ministry of Public Service to convey to the Claimant to vacate the Office whilst the Commission and the Ministry of Public Service seek to facilitate the extension of contract of the Claimant for another term. Only after then, the Governor General would be advised of what ought to be done. How long will it take to facilitate for another term, no one knows. See discussions under sub heading, unreasonable exercise of discretion.
	In any event, the culmination of the tone of the letter would appear as temporary vacation. But clause 23 of the Agreement of Service defines vacation as another means of termination. The use of the two different words in both the constitution and the agreement to mean the same is rather impracticable.


47.	The issue that I have just dealt with supposed to appear as the substantive issue in this case rather than right to be heard, legitimate expectation, irrelevant consideration etc, which are not substantive issues in my view. But they are associate issues which I now respectfully consider.

	Right to be heard.

48.	The Claimant having transit through events in time consequently thought that he was not given opportunity to be head prior to termination of his appointment as Auditor General. The letter of 15^th November 2013, by the Permanent Secretary of the Ministry of Public Service did not contain the word “termination” but “vacation” with the notion of facilitation of the Claimant’s contract for another term. In the absence of the use of the word “termination”, the word “vacation” of office under clause 23 of the agreement means termination under the heading.

49.	Undoubtedly, the effects of the decision contain in the letter affected the Claimant by altering his rights and obligations and depriving him of the benefits or advantages which he had been permitted to enjoy which he can legitimately expect to continue.

50.	Conscious of the impeding risk of reaching 55 years, the Claimant wrote to the Defendant on 30^th May 2011, requesting extension of his term of appointment. By his sworn statement the Claimant attested that there was no reply, instead verbal or oral assurances were conveyed by the Chairman of the Defendant and the Permanent Secretary of the Ministry of Public Service.

51.	Such oral assurance cannot be accepted as admissible evidence because date and time and when those assurances were made were not recorded in evidence. That piece of evidence is bad for lack of clarity and preciseness. In reality, there is no evidence to support such assertion.

52.	The most significant point is that when one deals with a subject as a written contract, anything in connection or association to a written agreement must be done in a written form. Oral assurance of any nature does not assist the parties to the agreement; at least a written assurance ought to be traversed. The Claimant cannot rely on orality to support his claim to verify the failure by the Defendant not to respond to his application. But he should be conscious that remaining on the post after attaining 55 years of age is unconstitutional in a technical sense. To remain without formal authority is enjoying the full benefit from the terms and conditions of services which are liabilities to the Government.

53.	I noted the case authorities refer to by the Counsel for the claimant. They are very pertinent source of authorities so far as the principles in law are concerned. I noted rights for fair hearing was established by the case of Ridge V Balwin^[5] and has been applied in this jurisdiction in judicial review including the case of Lixca V Attorney General^[6] and Simata V Goldie College School Board management and Zaku V Public Service Commission^[7]. In all those cases they concern allegations. In Lixca’s case she was alleged to have filed false particular in her declaration in support of her application for renewal of her work permit. Simata’s case concern expulsion from School for allege breached of College Rule. In Zaku’s case concerned a scandal in the management of large sums of public moneys meant for National or Provincial Developments.

54.	In this case there was no allegation laid or blamed against the Claimant, neither he was suspected or even susceptible to one. Section 129 (2) of the Constitution and Clause 23 of the Agreement of Service are clear, definitive with clarity, that upon the Claimant attaining 55 years he should vacate the office. Section 129 (1) did not use the word termination but the section was referred to under clause 23 which is a termination clause.

55.	In any event, the likely-hood of what is expected to be heard from the Claimant was that his application for extension of his tenure prompted no reply. Had there been any reply conveyed he would have taken the right course to avoid being terminated.

56.	For that period of delay, after the Claimant had attained 55 years, he should have been conscious that he was remaining on the post unconstitutionally and was enjoying the benefits under the agreement which had been void, and which he was not entitle to. He cannot now blame the defendant for the delay. He may not have lost anything and suffered no prejudicial. The delay had in fact provided a source and paves a path for enjoying and receiving remuneration illegitimately for far too long.

57.	This is not a case where allegations were laid against the Claimants so that his side of the story must be heard. This case premises on non-compliance with the law and the terms of the agreement. The Claimant’s ultimate argument is non-response to his application for extension. That cannot be relied upon now because the Claimant had benefitted enormously out of the delay illegitimately. Therefore, the Claimant cannot rely on the principle of right to be heard, it renders no assistance to him at all.



	Legitimate expectation:

58.	At common law, the test for the principle of legitimate expectation was set by Lord Diplock in the Case of Council of Civil Service V Minister for Civil Service^[8]. That the decision must affect other person’s rights or obligations which can be enforceable against him. That the decision deprived him of some benefits or advantage which he had been permitted by the decision maker to enjoy which he legitimately expect to continue unless there has been communicating to him some rational grounds for withdrawing which he has been given opportunity to Comment or he has received assurance from the decision maker will not be withdrawn without giving opportunity to give reasons for contending they should not be withdrawn. The principle was applied and adopted in this jurisdiction is the case of Ansah V Attorney General^[9] and in the case of Alai V Kakai^[10].

59.	The Claimant contends that his case falls under the second category in Lord Diplock’s pronouncement, where the Claimant was allowed to enjoy interest and benefit to the point where it would be unfair to withdraw without giving chance to comment on the withdrawal.

60.	The Defendant argues the legitimate expectation the Claimant relies on is unreasonable, for reasons summed up in five points in his submissions.
61.	My approach is this, there is no dispute such common law principle was in existence and the Courts in this jurisdiction had applied it succinctly with approval.

62.	My simple approach is that the parties are well versed with the law (Constitution) and the terms of the Agreement of service. The Defendant was aware that the Claimant was 53 years of age when he executed the agreement, if not, later when he submitted his application for extension of his appointment.

63.	As a law abiding Citizen, the clause related to vacation of office upon attaining 55 years is simple in its feature and interpretation with allowance for extension at the mercy of the Governor General.

64.	There can be no doubt the Governor General; on advice has the power to extend the agreement beyond the age limit fixed by Section 129 (2) of Constitution and Clause 23 of the Agreement of Service.

65.	The expectation the Claimant relies on as legitimate, which he expected to secured assurance for him to continue in Office until such time a formal extension was served on him. His expectation was drawn from oral assurance where he offers no evidence at all to support his assertion. At paragraph 7 of his sworn statement filed on 9^th July 2014, he deposed by mentioning the Chairman and the Permanent Secretary of Public Service verbally advice that he could continue for full term. The evidence is too general; there was no specification as to date and where those oral assurances were conveyed. A letter will be a well-accepted documentary evidence of exactly what the two Officers had said. In the absence of such, expectation is illegitimate and illusive which the Claimant could not rely on.
66.	The Claimant’s legitimate expectation was from the oral assurances cannot be relied on, because from 30^th May 2011 until he received the letter of vacation on 15^th November 2013, there was no response or reply to his application for extension. A well educated person could have taken that his continuous present in the job was contrary to the Constitution and the contract of employment, was a breach. How long would the expectation linger on for; not for eternity I suppose. And if nothing is forth coming in terms of response and reply, it would be out of sense to continue expecting that something would come. In the end it came with a prize but was not accepted, why? 2 years of waiting should prompt a kind of reaction, either he submitted another application or ensure a written assurance be obtained from the Defendant? The Claimant had failed to venture into those options.

67.	As I have alluded to previously, it would appear the Claimant with his unreasonable expectation, relying on assurance, which he cannot proof, continued to enjoy the terms and conditions of services provided under the contract of service. Sixteen months of enjoying what he did not deserve, had been accepted by the Defendant as a remedy for the delay and for not responsive in time, the Claimant should now move on with his life.

	Irrelevant Consideration:

68.	Arguments under this sub-heading circles around the fact that the Defendant was merely acting on the instructions of the Governor General which prompted the Defendant to direct the Permanent Secretary of the Public Service, who conveyed by letter, requesting the Claimant to vacate his office immediately. Though the word used was “to vacate”, the fact that Clause 23 (termination) in the Agreement of Service made equal reference to Section 129 (b) of the Constitution. Conclusion can be drawn that the intent of the letter, which comprises the word “vacation” can now be used purportedly to mean termination of the Agreement of Service.

69.	In this case the Claimant subsequently was issued with a termination letter written by the Permanent Secretary, on advice by the Defendant. The question whether the appointing authority should finalise the termination seems to far from reach. There is no evidence he directed the issuant of a termination letter.

70.	I agree with Mr Pitakaka that the Governor General has no legal power to give directives to the Defendant but he may act on the advice of the Defendant not on mandatory basis but through exercise of discretion.

71.	I accept there are irregularities as to the process to comply with the issuant of the termination letter which had been alluded to previously, suffice to say, it need not necessary to recapitulate again.

72..	My approach would be different if I accept the principle of legitimate expectation in favour of the Claimant. That perhaps would cure the mischief in the process of termination, which I find some irregularities present.

73.	In any event, though irregularities persist, the level of aggravation that could render the decision unreasonable is minimal and cannot hold a valid reason to ground a quashing order.

74.	The backdrop circumstance which this subject ought to be considered is against the very significant point that the claimant had been occupying an office which he was not legitimately authorised to do so, under the Constitution and the Agreement of Service, in particular Section 129 (2) of the Constitution and Clause 23 (b( of the Agreement of Service respectively.

75.	If the application for extension was not granted or delayed for some reasons, would it be fair and permissible for the Claimant to continue occupy the post for 16 months. Sixteen months was too long, something ought to have been done. The Defendant might have some reasons not to make a reply. Common sense should dictate, that waiting for far too long in vain is an illusion that one good day a reply would come, that will never materialised. That is an expectation with unreasonableness despite oral affirmation, which the Claimant cannot rely on as good evidence. He cannot depend on such and continue to achieve benefit from the alleged deficiency to quash the decision. I must therefore dismiss the Claimant’s argument on this ground.

	Unreasonable exercise of discretion:

76.	This issue premises on the assertion that by refusing to extend the Claimants tenure in office, the Defendant is exercising unreasonable discretion which it has empowered to do by provision of Section 129 (2) of the Constitution. In support the counsel had referred to a statement made by Lord Green, MR in the case of Wednesbury^[11]

77.	The Wednesbury’s case set out certain standards or elements as tests which may demur the exercise of statutory discretion as unreasonable in the sense they are made in bad faith, involves dishonesty, unreasonableness, took into account irrelevant matters, did not take into account relevant matters, disregard for public policy or so absurd that no sensible person could anticipate that it lay within the powers of the authority.

78.	The core heart of the Claimant’s argument is that the Defendant took account of an irrelevant factor, that there being directives which was conveyed by the Governor General who has no power to give such direction. Secondly that the Claimant thought his termination was politically motivated to halt the progress of his investigative work.

79.	In any event, the purported directive referenced to were almost non-existence. It was a mere reference without any evidence affirming such directive was conveyed by the Governor General. Further still, there is no evidence provided of an ultimate intention to halt the investigative work of the Claimant. Neither of, or part thereof, any investigative work is provided in evidence to support such assertion. It cannot be said either that termination of the Claimant was timely, hence the Defendant acted unreasonably.

80.	The bottom line is that the termination of the Claimant was necessary as a requirement to comply with S.129 (2) and (7) of the Constitution as read with Clause 23 of the Agreement of Service. It cannot be possible to rely on Agreement of Service as overriding the provisions of the Constitution. If the Governor General does not permit the Claimant to continue after 55 years then that is the end.

81.	The Omission by the Defendant cannot be capitalised on as unreasonable. It may have upheld some impact in other circumstances, but does not in this case. The Claimant who turned 55 years of age on 7^th July 2012 continued to enjoy the benefits for sixteen months. Hence, that omission had been remunerated. The Claimant in my view cannot continue to persist that his application receives no reply therefore would continue on the post. Based on no reply and oral assurance cannot be accepted as evidence one can trust.

82.	Relying and expecting extension of his term which apparently had never been materialised is an anticipation of myth. Nothing was even sought and obtained from the Governor General. The Claimant had made impressive contribution to the office of the Auditor General and to the Government. That was never agreed or termed as unreasonable. The Claimant should have realized that after turning 55 years of age and no extension was granted within 16 months, should sound a kind of response or hint some kind of warning.

83.	In fact no one should be blame for failure to take into account relevant facts against public policy. The Constitution and the Agreement of Service are very clear.

84.	With the reasoning instil in this judgment, I must adjudge that all reliefs sought under relief (2) by the Claimant cannot be sustained. In respect to relief (3) it would be unreasonable in the circumstances of this judgment to declare the Claimant’s appointment was never revoked and remains effective, I must dismiss that relief as well. Another reason is because a substantive Auditor General has now been appointed. In judicial review cases, the court has discretion to exercise, and I do so in this case.
	Orders:

	1.				Order refusing to grant remedies in relief (1), (2), and (3) including order for damages for breach of contract with interest hence dismiss the entire reliefs accordingly.

	2.				Refuse to grant order for exemplary and aggravated damages and dismiss accordingly.

	3.				Order that the Claimant pays the cost of the Defendant.

High Court of Solomon Islands

Ronia v Attorney General [2016] SBHC 177; HCSI-CC 207 of 2014 (30 September 2016)