Eastern Marketing Distributors v Attorney General [2017] SBHC 133; HCSI-CC 186 of 2012 (5 July 2017)

EASTERN MARKETING -V- ATTORNEY GENERAL
DISTRIBUTORS, ZERO (Respondent)
WASTE MANAGEMENT
SERVICES LTD
(1^st, 2^nd Claimant)

IN THE HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.186 of 2012

Date of Hearing: 9 June 2017
Date of Judgment: 5 July 2017

Mr. R. Firigeni for claimant
No more recent appearance of defendant

Claims for breach of contract

Brown J:

1. This claim for breach of contract followed this courts earlier ruling given on the 9 March 2017 refusing judicial review (filed in June 2012) of the Permanent Secretaries decision to terminate the contract agreements executed with the 1^st and 2^nd claimants for “airside maintenance of Honiara International Airport”.

Consequently the 1^st and 2^nd claimants each sought damages for breach of agreement in a contract sum of $ 2,016,000 and further damages specified to relate to financial arrangements made by way of loan agreements to facilitate services to be provided under the contracts.

2. The contracts were the same, commencing at pages 17 of the Court Book (Eastern Marketing Distributor) and 85 (Zero Waste Management Services Limited), contract of service with the contractors, reciting in both “for the maintenance at Henderson International Airport”. The term was expressed to be 12 months from date of contract, 12 March 2012. The payment provided for

$ 168,000 to be paid monthly to the contractor. The termination clause stated;

“The Central Tender Board (CTB) or the office of the ministerial Tender Board (MTB) may terminate this contract at one months’ notice for any reason (provided to the contractor in writing) or with immediate effect if the Contractor fails to perform the continued contract works for a period of one months without reasonable cause”

3. The statement of Case recited the Ministry of Communication and Aviation had “a new Permanent Secretary appointed to replace the former Permanent Secretary. On the 30 March the new Permanent Secretary wrote to the claimants, terminating the agreements for maintenance. The new Permanent Secretary, in breach of the termination clauses, purported to terminate the contracts. The particulars of the breach were, a) failure to give one months’ notice as required under the signed contract and b) termination done without the authority of the Ministerial Tender Board”.
   
4. On the 22 October 2012 the Attorney General, by Stanley Hanu made application to strike out the Claim for it had been couched as one for judicial review when on the statement of case it was in effect, a claim for breach of contract. The application was refused and the matter proceeded, until on the 21 April 2017 the claim was amended to reflect the statement of facts, and made a claim for breach of contract.
   
5. A letter headed Revocation and Termination of Contract Offer for Henderson Airfield Airside Maintenance, the Permanent Secretary Ministry of Communication and Aviation (under the Ministries letter head) dated 30 March 2012 was sent. That letter, to Eastern Marketing Distributors (and I presume the similar letter to Zero Waste Management Service Ltd) informed the addressees of the revocation and termination of the contract.

The letter went on to say that the Ministerial Tender Board had failed to follow proper Tender Process and that, on the 13 March 2012 the chairman of the Tender Board ceased his appointment. On the 12 March 2012, the Permanent Secretary (whose name does not appear on any of the pleadings although was accepted to be George Leo) was appointed in lieu of the previous Secretary, Jeffery G Wickham, who had purported to sign for the Ministry, the contracts on the 14 March.

6. I am satisfied at the time the contracts were purportedly entered into by these claimants with Jeffery G. Wickham, he had no authority to bind the Ministry and contracts signed by him after the appointment of the new Permanent Secretary George Leo, on the 12 March 2012 are consequently null and void. I am not required to find whether such acts in these circumstances are illegal but in the apparent absence of authority the contracts are clearly void, (not voidable).
   
7. It matters not the letter referred to the revocation and termination, for the contracts were treated as a nullity by the Permanent Secretary, who refused to ratify the “agreements” signed by Wickham.
   
8. The absence of notice relied upon by the claimants is consequently an irrelevant issue for there were no contracts upon which they could rely, contracts signed by a proper authority. No contracts in any event were made by the Tender Board, so no issues arises as to any contract purportedly executory, by the Chairman whose authority at the time the claimants rely upon the document put forward by Jeffery Wickham, on the 14 March, had been revoked.
   
9. Whilst argument has been directed towards the terms of the termination clause in the document, by paragraph 10 of the Statement of Case, the claimant relied upon the unilateral act of the Permanent Secretary George Leo in purporting to terminate the “agreement” as contrary to the requirement by the committee of the Ministerial Tender Board to so decide. The Claimant has not brought evidence to show the Board or Committee need both recommend acceptance of tender and determine any such contracts entered into subsequent to acceptance. For the Board has not been shown to have been the “proper authority” to execute such contracts in the 1^st instance (for the earlier Permanent Secretary Jeffery Wickham has in this instance been relied upon as the “proper authority”) so it is difficult to accept the claimants argument that the Board or Committee has the power to determine a contract entered upon by a particular Government Department, by its Permanent Secretary. The presumption of authority would be with the Permanent Secretary, both as to contract and to termination. It has not been displaced, but as I have shown, the argument cannot avail the claimant where the claimant argues the agreements signed by Jeffrey Wickham were valid in law. As I have found, at the time, 14 March 2012, Jeffery Wickham had no authority to contract on the Ministries part. The absence of argument on the issue upon which I have determined the case, apart from the claimants assertions that the agreements were valid at law, while not conflict between matters in evidence put forward by the opposing parties, does not prevent the court from reaching such a decision on the established facts.^[1] The claim, reliant on the supposed agreements, must fail.

The Claim fails. There shall be judgment for the defendant. The claimant shall pay the defendant’s costs on the 3^rd schedule scale in an amount to be agreed or failing that, the taxed amount, within 3 months of the agreement or taxation.

__________________
BROWN J

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^[1] Sa’oghatoga Mugaba Atoll Resources Co.(2015) SBCA4,SICAO-CAC 2 of 2015