Feratelia v Solomon Islands Mission of the Seventh Day Adventist Church [2018] SBHC 20; HCSI-CC 137 of 2013 (8 February 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)
Civil Case No. 137 of 2013

BETWEEN: PASTOR FRANCIS FERATELIA Claimants

AND: SOLOMON ISLANDS MISSION OF First
THE SEVENTH DAY ADVENTIS CHURCH Defendant

AND: PASTOR GEORGE FAFALE Second

(President of the Solomon Islands Mission Defendant

of the Seventh-Day Adventist Church)

AND: PASTOR SAMUEL PANDA Third
(General Secretary of the Solomon Islands Defendant
Mission of the Seventh-Day Adventist Church)

Date of Hearing: 26^th April 2017
Submission on 26^th October 2017, 27^th April 2017
and 26^th April 2017

Date of Judgment: 8^th February 2018

Mr Primo Afeau for the Claimant
Mr Nelson Laurere for all the Defendants

JUDGMENT

FAUKONA J: A claim in Category A was filed by the Claimant on 7^th May 2013. The reliefs sought in the claim are for two declaratory orders, one consequential order, and two orders for reinstatements, general damages and costs. This case is one of a very complicated one, because the facts and issues involved are not straight forward but are of a very complex nature.

Brief Facts:

2. The Claimant is a member of the Seventh-Day Adventist Church (SDA). In or about June 1994, he was ordained as a Pastor/Minister of the SDA Church and was bestowed with a Pastoral Licence. The ordination had endowed the Claimant with permanent employment by the Eastern Solomon Islands Mission which he regularly drawed remuneration salary and other benefits.
3. The first Defendant is the entity responsible for the operation, management and the affairs of the SDA Church in Solomon Islands since 2007. The second Defendant was the President and the Chief Executive Officer of the first Defendant. The third Defendant is the General Secretary of the first Defendant.
4. In 2007, the SDA Church restructured its administrative operation in the Solomons by amalgamating the three former Missions into one Mission. The first Defendant then was conferred with responsibilities and functions of the former three Missions.
5. In guiding the general administration of the Church, the SDA Church relies on the Manual reissued in 1990 (Church Manual) and the South Pacific Division Working Policy 1994 (Church Policy). The two documentations contain relevant and coherent guiding principles. One of which is applicable to disciplinary processes which the Church must adhere to.
6. Under the Church Policy document, three grounds are identified as basis for discipline. They are moral fall, apostasy, dissidence and perhaps more in connection but not disclosed.
7. The Church Manual contains a Chapter for Church Discipline. Significantly the Chapter also provides for the application of the rules of natural justice. That a member has the right to be heard in defence at the disciplinary proceedings.
8. In 1999, the Claimant left Solomon Islands to study theology at the Pacific Adventist University (PAU) in Papua New Guinea(PNG). He was financially assisted by various organizations of the Church. At that time he was a member of Lau Vally Local SDA Church.
9. In mid-2001, the organizations which assisted the Claimant financially had terminated their assistance.
10. By a letter of 18^th June 2002, the Secretary to the Trans Pacific Union, based in Suva, Fiji, wrote to the Claimant informing him that the Trans Pacific Union Execuitve Committee which convened on 11^th and 12h June 2002, in Suva, had taken action to annul the Ministerial Ordination of the Claimant effective forthwith.
11. A circular letter issued on 12^th November 2002 from the Secretary informing all Local Mission President/Churches and Institution Administrations of the action taken by the Committee against the Claimant.

Grounds for annullment:

12. When an arbitrator, tribunal or committee conferred with power, is persuaded to consider and made determinant on an issue of alleged misconduct, the action complained of must be contrary or violated a law, rule or regulation of that particular organization, so that any determination on the breach must forbear, uphold and maintain common sense code of conduct.
13. A perpetrator charged with an allegation ought to be precisely notified accordingly. One of the features of natural justice is the right to have a notice of the charge or allegation served.
14. I noted from the Claimant’s submissions which refer to a report affirmed by Pastor Tanabosa, that the Claimant had been disciplined by the Disciplinary Committee of PAU, for breaches of University Rules which the Claimant had already been penalized by termination of his study funding support.
15. Whilst it is interesting to note that the Claimant had been disciplined by PAU Disciplinary Committee, the question to pause, was it the same offence or nature of misconduct which PAU had determined was submitted for Trans-Pacific Union Executive Committee to consider? If so, what is the nature of the offence or charge? In the case of Waroka v Habu and AG^[1], the court stated, “ a person must be told that evidence has been given and that statement made against him and that he must be afforded opportunity to respond”.
16. In any course, major grounds for discipline is well catered for and documented in the policy statement of the SDA Church, and they are well identified as above. Despite well documentation of the grounds, there is no disclosure of any grounds for disciplining the Claimant, neither on any other ground associated with the major grounds.
17. The letter on page 51, of the Court Book which the Counsel for the Defendants refer to as containing some implications of the ground, did not state the nature of the ground and the particulars of the offence or charge at all. Paragraph 4 merely refers to counseling and that the Claimant, had been given many chances than any other student, to change his ways. What ways were to be changed, the letter did not disclose at all. It is not the function of this court to reseach to find out the actual charge. However, it is expected the Counsels would assist on very significant facts and relevent laws.
18. This point is equally important to uphold the rule of natural justice and ensure the Claimant was aware of the nature of allegation laid against him so that he prepares his defence or instuct a legal Counsel for assistance.
19. Further still, the letter exerts by amplifying a mere warning that a minor offence can become a major one, but did not disclose the nature of the minor offence.
20. If Trans-Pacific Union Executive Committee was given a report to determine Pastoral Ordination and Licence of the Claimant, it should have informed the Claimant of the ground for which he be disciplined for. If the Claimant had appeared before the PAU Disciplinary Committee for the same nature of offence, then the Trans-Pacific Union Executive Committee was expected to exercise its mandatory prerogative on the issues, not forgetting must conveyed to the Claimant the reasons, he has the right to know. By then, this court should have been well aware of the nature of the allegation. Unfortunately there is nothing available before this court.

Pacific Adventist University’s approach to Claimant’s ordeal:

21. Any educational institution in the world must have in place its laws, rules and regulations. It is expected and an obligation upon all students who studied in a particular educational institution to abide by those laws, rules and regulations.
22. Abiding with laws, rules and regulations cannot be isolate, there must be processes to deal with the offenders of those .
23. In the current case, the letter at page 51 of the court book, acclaimed as part of the processes in deciding the Claimant’s issue problem. If that letter can be treated as appears to reflect a worst scenario, the PAU as an authority must have imposed a disciplinary action against the Claimant, not as a Pastor/Minister, but as a student accepted to study at PAU. It is not clear, but I could assume it did, drawing from the fact that the financial support for the Claimant’s studies had been terminated.
24. That action is equally important to uphold rules of conduct and behaviour that will have equal universal application to other students. I acknowledge the fact that PAU is not only a Theological University but other educational disciples were also offered and many Solomon Islanders were taking up those courses.
25. Unfairly as it seems, by upholding the status of the University, it reported for discipline of an offence not precisely stated. However, whether by refering the report directly to Trans Pacific Union was done according to procedures, or should it be channelled through Eastern Solomons Union Mission before onward submissions to Trans Pacific Union Mission. In any event either path was irrelvant. The very significant issue was having the knowledge of the actual charge the subject of discipinary consideration.
26. Another very important point, perhaps connected to the nature of offence alleged is that the Claimant is yet to be disciplined by his own Local Adventist Church. Why such delay? One conclusion is that the Local Church is yet to receive information from hierarchy Church Authorities related to the offence committed so that the processes will be finally accomplished by the local church.
27. In any event, I cited Church Policy in disciplining Ministers is enshrined in the policy paper – see page 339 – 340 of such Policy. There is an indication; for the offence of moral fell or apostatizes a Minister is expected that his Credential/Licence be withdrawn permanently. For the same offences will render the Minister’s ordination be made void. And for the same offences, a Minister shall be ineligible for future employment.
28. If neither of those offences alleged was not charged upon the Claimant, then which particular ground upon which the Committee premised to terminate or withdraw the Claimant’s Credential/Licence and to nullify his ordination? For that matter, the offence ill never be identified but will remain a mystery for the SDA Church to consider.

Authority conferred with power to discipline:

29. The Claimant has come to court alleged to have been deprived of his rights, hence seek redress. It is an acceptable principle that the body that made an appointment also has the same right to discipline and to dismiss any such appointment.
30. Common knowledge dictates that the Claimant was ordained as Pastor/Minister in June 1994 and was automatically employed by Eastern Solomon Islands Mission for remunerations. The performance of ordination and licence is conceivably a submission attested to by the Defendant’s Counsel. If that was the case, in essence, consistent with the principle commonly acceptable.
31. By issuant of a letter of 18^th June 2002 to the Claimant annulling his Ministerial Ordination, by the Trans-Pacific Union Executive Committee, maintained its authority to appoint/ordained and fire. I would agree it was not the decision of any of the Defendants. The Claimant has agreed he received that letter.
32. However, there is an argument that after 2007 amalgamation, the Defendants had taken over the functions, roles, duties and obligations from the three former Missions. And had taken over all outstanding issues in respect of employment, discipline and annulling of Ordination, Credential and Licences.
33. That argument, as I could able to perceive and glean, is quite a distance from reality. Evidence had revealed that administrative functions of employment, remunerations and perhaps others, will remain the responsibility of the Solomon Islands Mission of the SDA Church. Even if within the new organisational structure, trancends from the translation of authority, the new authority would encounter power competent to undo the former higher committee’s decision to discipline. No wonder the Defendants resumed to cheap administration informing the Claimant that they could continue to consider the matter. See letters on 3^rd June 2009 and 1^st July 2009. That is purely an excuse. The reality is that they could not able to overturn a decision of the hierarchy authority, unless that authority in later course of time conferred upon the first Defendant. Meantime there is nothing affirmed by any evidence.

Issue of Natural Justice:

34. In this case there is no argument that Trans Pacific Union Executive Committee had power to annulling the Ordination and Credential/Licence of the Claimant.
35. The threshold of the Claimant’s argument premises on two features of natural justice. One the right to have notice of charges or allegations of misconduct, and two the right to be heard in answer to those charges or allegations. The later is also known as the audi alteram partem rule.
36. The right to have notice of any allegation had been dealt within paragraphs 10 – 13 above. There is no need to rehearse that again. Now am dealing with the hearing rule.
37. The right to be heard advocates the opportunity be given to the Claimant to prepare his answers to the allegations. The authority (Trans-Pacific Union Executive Committee) must give the Claimant a fair opportunity to put his case. All materials prejudicial or otherwise from all sources must be disclosed to enable the Claimant to make a comment. Where an oral hearing is conducted, as in this case, the Claimant was expected to present and make submissions and call evidence on relevant issues.
38. SDA Church policy paragraph 6(3) enshrined the fundamental right of natural justice – right to be heard in defence of oneself.
39. In the case of Talasasa v United Church of PNG and Solomon Islands^[2], where His Lordship Muria (ACJ) addressed the principle and stated,

“I now turn to the argument that the Applicant had been disciplined without being given the opportunity to be heard. The oft-quoted principle is audi alteram parterm, “(hear both sides)”. This entails that each party to a matter or dispute must be given the opportunity to state his case.”

40. His Lordship further stated, that proceeding before an administrative body need not follow in all respect those before a court of law. So that the procedure giving effect to “right to hearing before an administrative body need not be strictly observed, as in a court of law, so long as that body must not be content to consider only one side of the story before coming to a decision.”
41. Finally His Lordship concluded holding that,

“Clearly under English law as applied in Solomon Islands, the audi alteram partem principle requires that the party concerned must be properly informed of the substance of the case against him or that the case must be clearly put to him or he must be given reasonable opportunity of presenting his case, either orally or by written representations. The principle is consistent on all decision-making bodies including administrative bodies with the Church Organisations, to observe.

42. It is a non-issue that the Trans-Pacific Union Executive Committee failed its obligation to apply the principle of rules of natural justice in its decision disciplining the Claimant. If it had issued a notice to attend, it would still be a real problem. At the time when the decision was made the Claimant was still at PAU. Practically he would not attend because the venue the Committee presided was at Suva in Fiji. The Claimant had expressed that if he was informed he would have preferred to attend. Again another obstacle would be airfares from PNG to Fiji.
43. Indeed the Claimant was not afforded the opportunity to present his case. Even if so, transport difficulties and finance will further deter attending Trans-Pacific Union Executive (TPUE) Committee meeting held in Suva, Fiji.
44. Observation concluded, that lack of affording opportunity and location of the venue, had completely prejudiced the Claimant rights to natural justice, and reflected the total ignorance by the SDA authority to adhere to its obligations as required under its own Policy.

Time barred:

45. The termination and annulment of the Claimant’s Ministerial Ordination was made by a letter dated 18^th June 2002, written by the Secretary of the Trans-Pacific Union. Assumably, the Claimant would have received that letter in 2002, whilst still at PAU.
46. Apparently, the authority of Trans-Pacific Union in its capacity to ordain or annul has a direct administrative effect on the Eastern Mission Union, in terms of institution of employment and termination of such employment. Correspondingly, the obligation upon home mission to perform, is an act of moral performance yielding to the implementation of the higher organ’s decision. In doing so is responding to an obligatory respect due to that authority.
47. Section 5 of the Limitation Act demands that no cause of action shall commence after the expiration of six years from the date the cause of action accrued. The word “accrued” is used to refer to the date the Claimant had knowledge of the cause of action or when the cause of action arises.
48. On 7^th May 2013, the Claimant filed this claim. In an ordinary case it was a delay of eleven (11) years. It was even delay over six months allowable to file a claim for judicial review, and of course a delay to file a claim in a monetary term.
49. There are arguments in respect of two causes of actions which were time barred in filing them. One is inrespect of the decision to annul the ordination and licence of the Claimant. Secondly, in respect to his employment and remuneration received as an employed Minister/Pastor. I intend to deal with employment and salary later.
50. Counsels have commonly expressed that there was a delay in filing this case. Undoubtedly by law is true and cannot be denied. However, s.39 of the Act conferred upon the court discretion that it would be equitable to allow a proceeding notwithstanding the limitation period. Subsection (1) refers to prejudicing the Claimant, or that the decision of the court would prejudice the Defendant.
51. Subsection (2) qualifies the court to have regards and consider all the circumstances of the case and in particular grounds set out in paragraphs (a) – (f).
52. In the case of De Good V Star Harbour Compnay Limited^[3] which the Court stated,

“.....that under section 39 of the limited Act the Court is empowered to exercise discretion to proceed if the Court thinks it would be equitable to do so. Whether it will be equitable for the Court to condone the delay is determined by prejudice to be occasioned to the plaintiff or the defendant. Facts to be taken into account are enumerated in the section and cover many situatios, they include, the length of time, the reason for delay, the effect of the delay on the evidence, the conduct of the defendant, his responses to demand and disability of the plaintiff to take action”.

53. The Claimant attempted to convey rasons for delay. That the issue between him and his own church, which he was a member and Pastor, was a religious difference which could be resoved amicably without resumption to legal litigation. That notion could be true in general consensus.
54. The content of what the Claimant attempted to explain was not what he could reasonably contemplated. A decision to annul his ordination and licence was not negotiable. If he felt he was unfairly treated, he can either appeal to the next heirachy of authority within the Trans Pacific Union of the SDA Church, or in the absence of such, file a claim for judicial review and argue other entitlements of rights in a Court of law. That step was not first considered initially, but was the only legal path available. I think the delay is unrasonable in normal circumstances.
55. However, the circumstances of this cease is different from normal. Earlier I find the ground considered by PAU in determining the Claimant’s terminaiton of studies was not conveyed in a precise manner. Paragraph (4) of the letter referred to purpotedlly implicated the ground for discipline was very vague. The paragraph merely foucssed on the change of ways; what particular way was not particularly exposed. One conclusion which can be drawn, because the ways complained off did not fall or connect to one of the major grounds spell out in the Church Policy Page 338.
56. In a like manner, since the Trans Pacific Union Executive Committee had acted upon the report furnished to it by PAU, the approach taken was similarly equitable. Hence produced the same result.
57. I have reached the conclusion earlier that by annulling the Claimant’s ordination and licence, based on an unprecise ground, accompanied with failure to apply the rule of natural justice, though the claim was filed late with undue delay, the overriding interest is that there is merit in the claim which must be heard in court. The rule of natural justice is a question of law not fact was never applied or considered when determing the Claimant’s fate. To refuse him is prejudicing him instead of affording him a day in court.
58. Therefore I have reasonable ground to act, which I am satisfied on the balance to do so, acknowledging the exercise of discretion reflected by adopting a lenient approach in considering the delay and place emphasis on fairness, a cogent right of the Claimant recognized by law, which must be respected must be prvail in this case.

The issue of employment and salary:

59. One of the relief sought (order 5) in the claim concerns the Claimant’s salary as a Paster of the Church. Reinstatement of the Claimant’s salary is a contemplation should the Court finds the decision by the Trans Pacific Union Executive Committee, nulifying the Claimants ordination was unlawful, therefore void.
60. In normal acceptable standard, a salary cannot be isolated from any form of employment. A salary is a reward given for specific agreed perfomance stated in the employment contract. This boils down to the principle that a man cannot labour for nothing. It is not a religious maxim “occupy till I come”. A man employed by an employer expect a salary payable to him after stated period agreed upon in the contract.
61. Examination of the general administration of the SDA Church in the Pacific is very unique. The inter-relationship with the Ordination and disqualification by hierachy body with the home country administrative structure is almost instantive realization of implementing the decisions of the body.
62. The moment the Tras Pacific Union ordained someone as a Pastor the Eastern Solomon Union Mission took responsibility immediately and organize salary renumeration and other benefits to be paid immediately. Again such function cannot amiss or escape the provisions of the Church Policy.
63. When the Claimant was ordained as a Pastor in June 1994 his salary renumeration package was accorded to him. When he left for studies in 1999, at PAU, it was the Church Policy that his employment be terminated including his salaries, unless approval was made to inservcie training wheregby which his salary would continue retain.
64. In this case there was no approaval for inservice training. And the only option accepted by the Claimant was to codone the termination of employment and salary that was attached to it. This was a condition entrenched in the Church Policy or Manual for that matter.
65. What may have been the core of the claim for salary reinstateemnt, in my view, was based on the fact that, Trans Pacific Union Executive Committee had failed miserably to comply or apply the rule of natural jsutice in determining the Pastoral Ordiantion of the Claimant hence terminated his Licence.
66. It could be viewed that the action taken by Tras Pacific Union Executive Committee absolutely corresponded with the approach taken by PAU in termianting the Claimants scholarship. In a correlated manner the Committee’s determination was based on the report furnished to it by PAU.
67. In any event should TPU Executive Committee applied what was demanded in the Church Policy, the Claimant would have graduated by the end of 2004, which would then had the right to be re-employed and draw salaries emulment for his services.
68. There were no two cases amalgamated in one, and currently before this Court; there is only one. Termination of ordiantion and licence was done after the employment and the salaries of the Claimant had been terminated when he condoned to proceed on study leave. There was no time after the termination that the Claimant’s salary was reinststed, and later subject to the TPU Executive Committee’s decision. In fact the decision by TPU Executive Commttee to annul the ordination and licence had a direct impact, automatically ceasing the salary which had already been terminated. Therefore there is no need for the SI Eastern Mission to terminate the salary again.
69. If the salary had been terminated, logically will include employment. There can be no salary without employment. The same can be said in relation to NPF. There can be no NPF without a salary.

Conclusion:

70. In conclusion I find though this cause of action was delayed for about eleven years before commencement, I am obliged under the law to exercise discretion by permitting it to proceed. One striking feature, that is the reason which has influential effect, is the merit of the Claimant’s claim. In particular the rule of natural jsutice which was not considered at all by the TPU Executive Committee when it decided to annul the Claimant’s ordination and licence. In my respective view, whether that important rule was intentionally overlooked, or was ignored out of misunderstanding had affected this entire case.
71. In any event, I have decided that the rule of natural justice which the SDA Church advocates and had entreached in its Policy, was in existence but was ignored, and was not applied in the current case. The rule of ntural justice should be adopted and applied universally by all organizations, administrative bodies, boards, governments, government agencies and Churches, those who are conferred with power to make administrative decisions. The rationale is that any decision made must be fair to the person who was alleged to have breached any law, rule, policy or which may tantamount to allegations.
72. I find the decision to annul the Claimant’s ordination and licence was unfair and prejudicial. At this juncture it is significent to reflect and measure up to the reliefs sought and the circusmtances that surrounds the Claimant’s ability now.
73. I noted the Claimant is now under health problems and thus questions his capabilty to work as a Pastor any more. Further, his scholarship had been terminated and his egor to continue education have now been stalled. And any dream of achieving higher qualification is quite far from reach.
74. Apart from that, another significant point is that Trans Pacific Union Executive Committee which made the decision was not a party to this proceedings. In normal circumstances the current Defendants cannot be liable for an act done by someone else, neither answerable for it. That is a law recognized universally and canot be changed in any manner of case or circumstances.
75. To reiterate again, there was one decision made unlawfully, and had affected the ordination and licence bestowed upon the Claimant. At the same time it affected the salary regulary earned by him. Because the employment and salary had been termianated before the invalid decision was made, though there may be room for consideration is irrelevant at this stage.

76. In my view, this case was not about PAU’s determination to terminate the Claimant’s studies. That decision became an ultimate barring the Claimant from continuing education hence cannot contemplate to graduate; a notion quite remote to achieve. Thus affected any re-employment and salary which the Claimant may have expected to come his way. He had already agreed upon to be ceased and terminated on the expense of studying for higher qualification. Therefore, there cannot be a reinstatement of employment or salary. In fact the annullment decision had not made any difference in respect of termination of employment and salary. In this case, I try as much as possible to uphold justice which primarily aim at manifesting fairness in the circumstances of this case.

Orders:

1. Grant order declaring that the decision suspending the Claimant as Pastor of the Church is null and void.
2. Order refusing to grant relief (2).
3. Order refusing the grant relief (3).
4. Order refusing to return the Claimant’s Ministrial Ordiantion and Church Credentials.
5. Order refusing to grant relief (5).
6. Grant order for general damages to be asessed.
7. Costs to be paid to the Claimant on standard basis.
   

The Court.

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^[1] (HC) Civil Case NO.41 of 1992.
^[2] (1993) SBHC 12; HC-CC 10 of 1993 (26^th February 1993).
^[3] (1996) SBHC 6; HC – CC 276 of 1995.