Mamani v Teaching Service Commission [2017] SBHC 123; HCSI-CC 393 of 2016 (27 October 2017)

JOHN FRANCIS MAMANI -V- TEACHING SERVICE
(Claimant) COMMISSION
(Defendant)

IN THE HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.393 of 2016

Date of Hearing: 19 October 2017
Date of Judgment: 27 October 2017

R. Firigeni for claimant
A. Poa for Attorney General the defendant

Claim for judicial review of determination by Teachers Service Commission to dismiss teacher.

Brown J:

By chapter 15 of the Rules (Civil) Procedures 2008 where judicial review is sought, a court will not hear a claim unless it is satisfied of the matters listed in Rules 15-3-18;

a] the claimant has an arguable case;

b] ...etc

The courts powers do not extend to any recommendation for reinstatement for that is solely within the discretion of the decision maker. It is not in issue that the question for determination is whether the court is satisfied, on balance, of that arguable case. All the material facts have been disclosed so that answer to the question may finally determine this matter and the court shall comply with the Rules as they affect such applications. If there is an arguable case, the decision under review may be quashed and the issue whether or not to dismiss the applicant referred back to the decision maker for proper determination [in the light of any failings this court may have found], by the Teaching Service Commission or its delegate.

The claimant seeks the quashing order of that dismissal of the applicant as a teacher and an order that he be considered for reinstatement with, as a separate claim, compensation for unlawful dismissal.

The dismissal, on the facts, cannot be unlawful for the decision makers powers extend to an order dismissing a teacher, the question is whether the decision maker acted unreasonably in so doing. The courts powers do not extend to any recommendation for reinstatement for that is solely within power of the authority, the Commission.

A claim for damages may lie where the court finds mala fides for instance in the manner in which termination had occurred and the decision maker has been shown to have acted beyond jurisdiction. I am satisfied no such factors arise in this case. That part of the claim is struck out as showing no cause of action.

Where the decision maker has acted within power, but has been found to have acted unreasonably, no claim for damages may be considered. The court may only refer the original decision back to the decision maker for rehearing to accord with proper process. The “unreasonableness” in the Wednesbury sense^[1] argued by the applicant relates to particular failures to follow the procedures laid down in the teaching service handbook. For the handbook shall be followed when complaints of misconduct are made against a teacher. As admitted, by earlier letter dated 7 March 2016, the teacher was suspended for 30 days on half pay while an investigation was to be carried out.

T.S.Handbook 12.2.6 as well, provides;-

If the misconduct is of a serious nature, the allegation must be reported to the school committee or board for preliminary investigation and the report of the preliminary investigation be submitted to the EA for further investigation. The teacher concerned must be suspended from duties with immediate effect on half pay by the Education Authority pending further investigations and consideration on the obligation. An investigation on such cases must be carried out within 30 days of receipt of report by the education authority. The education authority shall within the 30 day period submit its report to TSO which shall then put the case to TSC for its deliberation and decision.

The claimant, by sworn statement of 8September 2016 at paragraph 4 said;-

“My lawyer advised me which I believe to be true that my termination is procedural and is invalid in law. It is null and void abinition [sic]”.

Whilst this claim, believed by the claimant to be invalid in law, is really one for determination by the court, the paragraphs inclusion in this fashion is unacceptable and reflects poorly on counsels drafting and obviously on the parties misunderstanding of the law. It is not counsel’s responsibility to determine the question and have his client by this means, accept the truth of counsel’s assertion. Such drafting reflects an unethical approach and cannot be allowed to pass without comment, even where defence counsel has made no objection. Little purpose is served in having a client restate as truth, a finding yet to be made, wholly within the courts power, rather one advanced by the lawyer so that the ordinary Solomon Islander is left with the feeling that the court, if it finds against him, is acting contrary to his lawyers and his own knowledge of the law as it affects him. There has to be recognition that subjective feeling in relation to matters of adoptive law about which an ordinary Solomon Islander may have but little understanding, may not be a substitute for determination by a court having jurisdiction to determine the question.

The argument may be made in pleadings, but it has no veracity when proposed as truth by the very applicant to the claim.

The decision to terminate the applicant as principal and teacher arose from complaints over misappropriation of Naha CHS funds in 2014 and the first term of 2015. By letter dated 3 March 2016 the chief education officer Honiara city Council education division recounted the steps taken following the allegations leading to an investigation.

In August 2015 the Honiara city Council education authority has been served with an allegation letter made against John Francis Mamani, the current principal of the Naha community high school, by teachers from Naha community high school (see letter attached). The H CC education authority administration, upon the receipt of the letter, immediately took the following action

1. request by J Francis Mamani to respond to each allegation;
2. refer the matter back to the Naha community high school board of management to deliberate on it and;
3. team of auditors from MEHRD (Dalton, Alan Tinoni, Margaret) has been requested to visit the school.

And the board responded promptly to their expectations and the H CC education authority is satisfied with respond and the report (see attached). Auditor’s report is yet to be received.

The response by the Principal and school board, was by report and recommendation directly to the MEHRD. The letter also referred to the audit report, for leaving aside the Principals personality which is reflected in the report, supportive of the decision for reappointment, the underlying basis for complaint was misuse of funds and failure to account for school fees paid. No particulars of account of moneys received and disbursed was provided by the School Board.

By later letter of 7 March 2016 the chief education officer has clearly recognised the issue of misappropriation as one of a serious nature requiring suspension.

Dear John Francis Mamani

Re: investigation into the Naha CHS School funds for 2014 – 2015

this is to inform you that an investigation team from the Ministry of education and internal auditor general’s office from Ministry of Finance will be investigating the allegations against you, concerning the misappropriation of the aha CHS funds in 2014 and the first term in 2015. The investigation is expected to one: month (30 days). The investigation you will be suspended from duties will be paid on half salary. The deputy principal will take charge of the Naha CHS. You are asked to act in a professional manner and refrain from intimidation of your teachers made the allegations against you. Also ask your one talks users and relatives to do the same. The investigation outcome/result will be given to the teaching service office in teaching service commission for further deliberation.

(signed) Clement Aitorea

Chief education officer

The Defence (Rule 5. 11 and 5. 39) does not admit the Statement of Case where the claimant had denied any audit report was before the Teachers Service Commission for its deliberation on 10 August, the date of hearing of the Commission. By paragraph 12, the Defence pleads;

12. That it does not admit paragraph 14 of the claim and further states that the Ministry’s internal audit division produced a detailed and comprehensive report dated 7 April 2016, which found that the claimant had misappropriated the funds or school grants allocated to the Naha community high school for the year 2014 to 2015 and rather payments that were supposedly made for the construction of a new staff house did not lead to such a facility being built.

The Defence further denies the claimants case that the chairman (designate) of the Teachers Service Commission was absent from the meeting on 10 August.

13. That it admits paragraph 15 of the claim in so far as it alleges that in a letter dated 11 August 2016 the Permanent Sec. of the Ministry terminated the claimant from his post as principal of the Naha community high school, based on the decision of the Teaching Service Commission.

14. That it does not admit paragraph 16 of the claim, and further states that the chairman or chairperson of the teaching service commission, Mr. Eliam Tangirongo was present during the meeting of August 10, 2016.

By submission, Mr. Firigini, argued while the Teaching Service Commission and the Ministry of Education and Human Resources Development (Ministry) (MEHRD) had a right to initiate independent investigation against a teacher, that independent investigation was conditional upon belief that an investigation report had been made by an education authority/principal/head teacher and was biased in nature.^[2] He argued contrary to the provision, no report has been produced by the Honiara city Council education authority that showed bias, in order to allow or to permit initiation of an independent investigation. This argument rather avoids the fact that the School Board chose to direct its letter and Report dated 22 March 2016 to the Minister and not to Honiara City Education Authority, I do not accept the alleged failing, in that instance Clause 12.2.10 of the Teachers Service Handbook need be read with Section 116B of the Constitution. That power to remove a teacher may not be fettered by the wording in the subsidiary document, the teachers service handbook, to prevent the Commission or its delegate from entering upon its independent investigation into serious misconduct where the TSC or MPHRD has formed such belief, in the first instance whether or not it is subsequently shown to have been wrong following finding of such independent investigation. A reasonable belief is sufficient, not one for instance reliant on any legal test, such as balance of probabilities or proof beyond reasonable doubt, to allow the Commission to conduct its investigation.

By “FJM-10”^[3] the Naha community high school, by letter dated 22 March 2016 wrote to the Permanent Sec MPHRD in support of the Principal and recommending against the allegations levelled against him.

The resolutions were;

1. The school principal should remain and complete the projects of the school.
2. The four teachers who remained strongly 16 who made the allegation against the school principal to be removed.
3. The school must engage a lawyer to write a legal letter to the permanent Secretary of the MPHRD to lift the ban on the school fee account of the Naha CHS.
4. The PTA Council agreed to these resolutions and showing their support in signing for these resolutions.

The report was signed by the chairman of the meeting, John Francis Mamani, and Charles Tetepi, Secretary. The report can be seen to have been signed by this claimant and may in terms of clause 12.2.10 of the teachers service handbook amount to an investigation made by an education authority/principal allowing the Commission to proceed with its own enquiry. I note that the Naha Community high school report does not seek to provide an account of grant moneys received and distributed or account for school fees received from students. That relevant issue going to the suspension, was addressed by the two reports of audit available to the Commission.

The education authority in this case may be seen to be the Honiara city Council, previously mentioned. The report was directly sent to the Permanent Secretary, MEHRD, and the Department is entitled to accept the report of the investigation and recommendations, on its face, as sufficient (since signed by the principal) to act independently where the Permanent Secretary notwithstanding such exculpatory report by the school principal and Board, has belief of the existence of serious misconduct relating to misuse of public funds.

By paragraph 11 of the defence;-

That it admits paragraph 13 of the Claim, in so far as it alleges that the teaching service commission met on 10 August 2016 and deliberated on the alleged misappropriation of funds by the claimant and subsequently terminated the claimant. The commission relied on the investigation report compiled after the investigation conducted on the complaints [sic] against the claimant compiled by the internal audit division of the Ministry, which concluded that the claimant had misappropriated the grants and other income such as school fees and were unaccounted for.

I am satisfied, whilst the school report of investigation and recommendations of 22 March afforded the Principal, this claimant, natural justice by virtue of opportunity to put forward the matters set out in those six pages, the letter of deregistration by the Permanent Secretary. MEHRD of 11 August was within power^[4] and relied upon the termination earlier on 10 August 2016 by the Teaching Service Commission at its 6th 2016 TSC meeting reliant on the audit reports, referred to in the letter of 11 August. I have considered all the material leading to the termination and am satisfied that the TS commission had power to terminate a teacher in certain instances of serious misconduct. I have referred to particular parts of this material to show the Commission, having jurisdiction and having afforded natural justice has not been shown to have unreasonably reached the decision to terminate. It needs to be remembered this court may not place itself in the shoes of the Commission.

My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the 1977 Act. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when or if, the Housing authority are satisfied as to this or that, or have reason to believe this or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. It is not in my opinion, appropriate that the remedy of judicial review which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground on which the courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense ...i.e unreasonableness verging on an absurdity. See the speech of Lord Scarman in Nottinghamshire CC v Secretary of State for the Environment [1985] UKHL 8; (1986) A.C. 240 at 248; [1985] UKHL 8; (1986) 1 All E. R. 199 at 202. Where the existence or nonexistence of the fact is left to the judgement and discretion of a public body and that fact involves a broad spread ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.^[5]

I accept these reasons as guidance in our courts when addressing applications for judicial review of the Teaching Services Commission or other administrative body exercising extra-judicial authority and am satisfied no bad faith has been shown here, nor procedural irregularity nor unreasonableness in the Wednesbury sense.

I am not willing to exercise my discretion in the claimant’s favour for I am not satisfied the claimant has an arguable case for the reasons given. I decline to hear the claim and strike it out. The defendant shall have its costs of these proceedings on the third schedule basis.

BROWN J

---

^[1] Associated Provincial Picture Houses Ltd v Wednesbury Corp. (1948) 2 All.E.R. 680 per Lord Green MR
^[2] Teachers Service Handbook 12.2.10 11
^[3] claimant's statement of 8 September 2016
^[4] section 34 education act
^[5] In R v Hillingdon London B.C. ex p. Puhlhofer [1986] UKHL 1; [1986] 1 All. E.R. 467; House of Lords by Lord Brightman at p. 518/474