Mauli v University of the South Pacific [2003] WSSC 38 (19 December 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FALEULU MAULI,
of Alafua, Accountant
Plaintiff

AND:

THE UNIVERSITY OF THE SOUTH PACIFIC,
a body corporate established pursuant to the
Charter of the University dated the 4th day of February 1970
Defendants

Counsel: Mr RS Toailoa for the plaintiff
Ms R. Drake for the defendant

Hearing: 30 April 2003
Submissions: 25 July 2003
Decision: 19 December 2003

DECISION OF VAAI J

The plaintiff in these proceedings was in February 1981 employed by the defendant as Chief Accountant at its Alafua Campus in Samoa on a three yearly contract which had been renewed six consecutive times so that the last renewal was to expire on the 20^th December 2002. Eighteen months before the expiration of his last renewed contract the plaintiff in compliance with the defendant’s procedures, submitted review application together with appraisals from the Pro Vice Chancellor of the Alafua Campus and the Director of IRETA also of the Alafua Campus. The Pro Vice Chancellor did recommend to the Staff Review committee at Suva, Fiji a renewal of the Plainiff’s contract but the Staff Review Committee at its November 2001 meeting at Suva, Fiji deferred the application and by the letter dated 19^th December 2001 to the plaintiff expressed their disturbance with:

(i) major inadequacies in the performance of the plaintiff’s role as financial manager and controller for the Alafua Campus.
(ii) The plaintiff’s attendance and time keeping.
(iii) Allegations of business interests which might be in conflict with the plaintiff’s responsibilities.

By letter dated 19^th April 2002 the plaintiff wrote to the Vice Chancellor responding to the Staff Review Committee’s concerns as well as voicing his objections to the manner in which the committee has handled his review application. At its May 2002 meeting the Staff Review Committee again deferred the plaintiff’s application pending the completion of the internal audit of the Alafua Campus which was completed in June 2002 and a copy of the Audit report sent to the plaintiff inviting the plaintiff’s comments. Both the plaintiff and the Alafua Campus Pro Vice Chancellor responded in writing but eventually the Staff Review Committee decided not to renew the plaintiff’s contract. The plaintiff claims that the decision of the Staff Review Committee not to renew the Plaintiff’s contract was wrongful, unfair and unreasonable and the plaintiff had thereby suffered loss and damage. He also claims that the Vice Chancellor as the Chief Administrative Officer of the defendant was negligent in handling the allegations against the plaintiff and contrary to Staff Review procedures while the decision of the Staff Review Committee on the plaintiff’s application for renewal of contract was pending. As a result of the negligent and ultra vires acts the plaintiff suffered loss and damage.

The defendant has moved to strike out the plaintiff’s claim on two grounds. I shall now deal with those two grounds to strike out.

Service of Summons and Statement of Claim

The defendant contends that as service of the summons and statement of claim was effected at the Alafua Campus rather than at the defendant’s head office at Suva, Fiji it was therefore defective service and the Statement of Claim should therefore be struck out. Service was in fact effected on the Pro Vice Chancellor of the defendant’s Alafua Campus; he is the head of the administration and a person in apparent authority at the Alafua Campus Pursuant to Rule 20 Supreme Court Rules service was proper and not defective. In any event defective service of the summons and claim will not entitle the defendant to an order to strike out and the first ground to strike out the Statement of Claim must therefore fail.

Justiciability

The second and main ground of the defendant’s application to strike out is that the issues alleged in the Statement of Claim are not justiciable in the courts because the plaintiff has an alternative remedy under the charter of the defendant which has not been invoked. In essence the defendant says that the complaint by the plaintiff against the defendant is a domestic matter of the University of the South Pacific and therefore comes within the exclusive jurisdiction of the Visitor of the University and is not justiciable by the court.

Article 27 of the Charter provides for the appointment of a Visitor of the University and his decision on matters within his jurisdiction shall be final.

Article 4(a) of the charter provides the University with power:

(a) to institute Professorships, Readerships and Lectureships and other officers of any kind and whether academic or not as the University may consider appropriate to appoint persons to and to remove them from such offices and to prescribe their conditions of service.

In response to the application to strike out, the plaintiff filed an affidavit and he deposes in paragraphs 11, 12 and 13 as follows:

11. At no time during all the years I was employed by the defendant was the office of Visitor ever brought to my attention or to the attention of the staff in general and I was totally unaware of such an office or of his powers and functions.
    
12. Even after my contract was not renewed, I was not advised by the Vice Chancellor or any other officer of the Defendant that I was able to bring my case before the Visitor. In my view, the Defendant’s failure to advise me of the Visitor’s office should estop them from raising the matter now. In any event, it seems to me that it is only a tactic to frustrate my claim but not a genuine attempt in resolving my grievances.
    
13. I have made enquiries as to the Visitor’s office with the previous Vice Chancellor of the University, Mr Esekia Solofa, and I have been told that the office of Visitor has not really been functioning at all. He was not aware of any grievance that has gone before the Visitor ever since the University was established.
    

Paragraph 13 is clearly misleading as counsel for the defendant has produced to the court a decision by Michael J.A. Brown dated 26 September 2001; a decision by the Visitor of the University of the South Pacific. Also before the court are two decisions of the High Court of Fiji and one decision of the Court of Appeal of Fiji dealing with Visitorial procedures and jurisdiction resulting from disputes between the University of the South Pacific and some of its staff or officers. And whether the plaintiff was advised of the existence of the office of the Visitor is not an obligation of the Vice Chancellor or any other officer of the University imposed by the charter so that the defendant is not estopped from raising the visitorial jurisdiction as a ground to strike out the statement of claim.

Who is caught within the visitorial jurisdiction was considered by Lord Goddard in R v Dunsheath ex p. Meredith 1950 2 All ER 741 at 743:

"Any question that arises of a domestic nature is essentially one for a domestic forum, and this is supported by all the authorities which deal with visitorial powers and duties, and although the question has generally arisen with regard to election to fellowship, I see no difference in principle between the question whether a particular person ought to be elected to a bit and proper person to be appointed or retained as a teacher at a university or school."

Undoubtedly the plaintiff is able to resort to the visitorial procedure so that the first real issue to deal with is whether the allegations by the plaintiff come within the jurisdiction of the visitor.

Counsel for the plaintiff first argues that the Charter which established the University of the South Pacific was given statutory recognition in Fiji so that while the Charter may be binding on the Courts of Fiji, it is not binding on the courts of Samoa so that the Court in Samoa has jurisdiction to hear and determine the plaintiffs claim. Another way of expressing the same argument is that the court in Samoa should not recognise the Charter which established the defendant University which employed the plaintiff. It is from the same Charter which gave the University the power to employ the plaintiff on terms and conditions and authorised the establishment of the Staff Review Committee against which most of the allegations by the plaintiff are levelled at.

Visitorial jurisdiction is an ancient concept. As Lord Griffiths said in Thomas v University of Bradford (1987) 1 All ER 834 at 839:

"- - the exclusivity of the jurisdiction of the visitor is in English law beyond doubt and established by an unbroken line of authority spanning the last three centuries from Philips v Bury (1694) Skin 447 to Hines v Birkbeck College (1985) 3 All ER 15L."

And at page 842 he continued:

"I now turn to consider the scope of the visitatorial jurisdiction. The jurisdiction stems from the power recognised by the common law in the founder of an eleemosynary corporation to provide the laws under which the object of his charity was to be governed and to be sole judge of the interpretation and application of these laws either by himself or by such person as he should appoint as a visitor."

And in The State v University of the South Pacific ex parte David Fowler Burness (unreported decision of the High Court of Fiji (Judicial Review No. HBJ 007 of 1996) Scott J said at page 7:

"- - - the Visitorial jurisdiction is an ancient one. Although once thought to be an unwelcome survivor from the past, it is now seen within its proper limits to be wholly beneficial."

And in Morrie v Auckland University Senate (1984) 1 NZLR 129 Cooke J (as he then was) said at page 140:

"But the Visitor’s jurisdiction is a valuable one. There may be such advantages as are mentioned by Sir Robert Megarry V-C in Patel v University of Bradford Senate (1978) 3 All ER 841, 852: relative informality, privacy, cheapness and speed. Certainly no less important are the flexibility and depth of the Visitor’s powers."

Contrary to the submissions of Counsel by the plaintiff the Supreme Court of Samoa will not be subject to the laws of Fiji if the Supreme Court of Samoa recognises the Charter of the University which has been given statutory recognition in Fiji. Recognition of any charter or Convention can be given by the court of Samoa where Samoa is a member or signatory. The University of the South Pacific is a creation of the leaders of island nations of the South Pacific who perceived the need for such an institution to be set up in Fiji. And when the University saw fit to establish a campus in Samoa for the School of Agriculture, the government of Samoa enacted The University of the South Pacific School of Agriculture Act 1977 to facilitate the establishment of the Campus. It would therefore be contrary to all expectations and good sense not to recognise the Charter. The issue really is not whether the court recognises the charter but how the charter should be interpreted by the court.

The second question to consider is whether the complaints by the plaintiff comes within the jurisdiction of the Visitor. Essentially the plaintiff’s claim emanates from the defendant’s refusal to renew the plaintiff’s contract as a result of the failure by officers of the defendant to comply with rules and procedures of the University. In my view therefore I find that the substance of the plaintiff's complaint is not merely contractual but procedural as well. There is also allegation of discriminatory treatment of the plaintiff so that this claim therefore in my view touches upon the interpretation of the private rules and regulations and falls within the jurisdiction of the visitor.

This brings me to the consideration of the third issue namely the nature of the courts jurisdiction. The Courts of England have accepted the principle that the jurisdiction of the Visitor is exclusive See Thomas v University of Bradford (1987) 1 All ER 834. It should be noted however that before Thomas v University of Bradford (supra) the approach by the English courts has always been that the courts have no jurisdiction at all over matters within the jurisdiction of the Visitor but since Thomas’s case the courts have taken the view that while the courts have no appellate jurisdiction it does have a supervisory jurisdiction so that the decision of the visitor may not be appealed but can be judicially reviewed.

Counsel for the plaintiff has referred to a different approach adopted by the NZ Court of Appeal in Norrie v Auckland University Senate (1984) 1 NZLR 129; that the jurisdiction of the Visitor is not exclusive so that the court can adjudicate over matters within the visitor’s jurisdiction. It was said by Woodhouse J at page 136:

" – I do not regard the jurisdiction of the Visitor as exclusive but rather as subordinate to that of the Courts; and, of course, that the exercise by the University itself of its own statutory powers and discretions will be open to direct challenge in the courts whether on grounds of mistake or in terms of natural justice and fairness. Thur prior failure to seek assistance from the visitor could simply have relevance in some types of cases as one matter which might need to be taken into account when deciding as a matter of judicial discretion whether relief should be afforded or refused."

Counsel for the plaintiff submits that the New Zealand approach is more appropriate to Samoa than the English approach and he has advanced a number of grounds why the New Zealand approach should prevail. But the real issue comes down to whether the complaints come within the jurisdiction of the visitor. The New Zealand case of Norrie emphasised that the jurisdiction of the court was supervisory and secondly in the absence of flagrant unfairness and pure questions of law the court will be reluctant to grant discretionary remedies in university disputes by way of judicial review or otherwise if the applicant had not first resorted to his domestic remedy.

As I have already formed the view that the substance of the plaintiff’s claim is both contractual and procedural violation of the defendant’s rules and regulations it therefore falls within the jurisdiction of the visitor. The complaint must therefore, despite the several grounds raised by the plaintiff, be referred to the visitor and the statement is accordingly struck out.

On the question of costs the plaintiff is ordered to pay costs of the defendant. If costs are not agreed upon counsels are to file memorandum within 21 days.

JUSTICE VAAI