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Sesehala v Ministry of Education and Human Resources Development [2024] SBHC 41; HCSI-CC 567 of 2023 (25 April 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 567 of 2023

BETWEEN:

GLADALL BOB SESEHALA
Claimant/Respondent

AND:

MINISTRY OF EDUCATION AND
HUMAN RESOURCES DEVELOPMENT
(Represented by the Attorney General, Panatina Plaza, Honiara)
First Defendant/Applicant

AND:

PERMANENT SECRETARY OF THE
MINISTRY OF PUBLIC SERVICE
(Represented by the Attorney General, Panatina Plaza, Honiara)
Second Defendant/Applicant

AND:

PUBLIC SERVICE COMMISSION
(Represented by the Attorney General, Panatina Plaza, Honiara)
Third Defendant/Applicant

Date of Hearing: 9 April 2024
Date of Ruling: 25 April 2024

Mr G Gray for the Claimants/Respondent
Mr N Ofanakwai for all the Defendants/Applicants

RULING ON APPLICATION TO STRIKE OUT CLAIM

Commissioner Aulanga

1. The Claimant, Gladall Bob Sesehala, was employed and worked for the First Defendant as Chief Education Officer on 4^th March 2020. He held that position until 12^th May 2023. That was when his employment was formally terminated by the Third Defendant for allegations involving financial scandals and other work-related complaints during the course of his employment. The decision was communicated to him by a letter dated 18^th May 2023. Aggrieved by the decision, on 20^th November 2023, he filed a Category A claim for judicial review. The claim however was filed more than six months from the date the decision subject to this proceeding was made. The Claimant did not file any application for leave to file the claim out of time. He decided to take a controversial path by filing the claim despite the lapse of the time.
2. The claim essentially is to quash the decision of the Second and Third Defendants made on the 12^th May 2023 that terminated the Claimant from his employment. The First Defendant is sued in the proceeding as the employer of the Second Defendants for vicariously liable for its employees’ ostensible actions in the termination of the Claimant from employment.
3. The claim was not served on the Attorney General but on the Defendants on 20^th November 2023 at their respective offices. Not until 26^th February 2024 that the Attorney General was formally served with the claim. The latter service of the claim therefore complies with section 16 of the Crown’s Proceeding Act and rule 15.12.19 of the Solomon Islands Courts (Civil Procedure) Rules 2007. A cursory and purposive reading of the two legal regimes is clear that unless there is a written law that expressly states the Defendants can defend themselves in any civil suit in Court, any service of the claim must be done or effected on the Attorney General.
4. Believing the service of the claim on the offices of the Defendants was proper, the Claimant on 1^st February 2024 filed an application for leave to obtain default judgment against the Defendants. That application was filed without notifying the Crown with a seven (7) days’ notice as required by rule 15.12.22. The hearing of that application was deferred and will be relisted pending the outcome of this application.
5. Perceiving the claim was filed more than the six months statutory time as prescribed under rule 15.3.8, and the lack of service of the claim on the Attorney General within the 3 months from the filing date of the claim required by rule 5.43 and 6.5, the Defendants (Applicants) therefore filed an application on 4^th March 2024 pursuant to rule 9.75 (c) to strike out or dismiss the claim, with costs.
6. The Claimant (Respondent) responded in the converse with sworn supportive sworn statements, urging the Court to dismiss the application and have the matter proceeded to trial for determination of the substantive claim.
7. At the outset, an issue regarding the failure of the Applicants to provide a sworn statement in support of the application was mooted by counsels. The Respondent argued that there ought to be a sworn statement as evidence proper to support the application. The default position, as argued by the Respondent, is that the application herein is devoid of evidence, misconceived and should be dismissed.
8. In my view, what seemed to be overlooked by counsel for the Respondent is the nature of the application itself. That is, the application herein is for dismissal of the claim for want of time barred. In other words, the claim was filed more than the six months statutory prescribed time as required by rule 15.3.8. Therefore, the facts regarding the date of the decision sought to be quashed, and the date the claim was filed at the High Court, have been revealed or perhaps self–evident from the pleadings and on the front page of the claim regarding the filing date notation as affixed by the High Court. Those pertinent facts are self-explanatory and uncontested. Viewed in this context, the peculiar circumstance of this application is one that does not need any admissible evidence from the Applicants to support the application. The use of the words “may receive evidence” in rule 9.76 for an application made pursuant to rule 9.75 provides for such a plain and obvious case like the present one. The facts required by the Court to make the decision for this application have been conveniently disclosed by the Respondent in the pleadings. They are indeed sufficient for the Court to make the decision without any admissible evidence from the Applicants. As said in Pou v Trillion Tree Co Ltd [2015] SBHC 4 at [12]:
   • “12 In deciding an application to strike out, premises on Rule 9.75, the consideration were set out in the case of Tikani v Motu. On page 1 paragraph 7, His Lordship Palmer AC J stated:
     • "In such an application, no evidence is admissible and the court can only look at the pleadings and particulars (Wenlock v Moloney [1963] 1.W.C.R, 38). The Court should also exercise its discretion to strike out in plain and obvious cases (Hubbuck & Sons v Wilkinson [1899] 1Q.B. 86, 91), and where no reasonable amendment would cure the defect.”
9. Another, is the issue that the claim was erroneously categorised with a Category A claim. It is trite law and practice in civil suit in this jurisdiction that a claim for judicial review is a Category C claim. Therefore, it has to be correctly categorised to align with the reliefs sought with the description of the claim as required by Chapter 2.3 of the rule. This issue is addressed in Paul Fota v Maximus International Limited HCSI CC No. 127 of 2023, where the Court held the view that by filing a claim with a wrong category, it would amount to an abuse of the Court’s process since the reliefs sought do not fall within the description of the claim. In this case, the Respondent filed a Category A claim for this judicial review proceeding. The Respondent did not seek or make any formal application to have the claim amended which is unfortunate. I will address the effect of this later in the ruling.
10. The single critical issue of controversy in this application is the issue that the claim herein was filed more than six months and without an application for leave for extension of time, the Court does not have the jurisdiction to hear the matter. According to the facts, the decision sought to be quashed was made on the 12^th May 2023 and the claim was filed on the 20^th November 2023. By timing, it should be filed by 12^th November 2023. By filing it on the 20^th November 2023, it was more than the six months statutory period prescribed under rule 15.3.8. Accordingly, that rule makes it a mandatory requirement that the claim for judicial review must be filed within the prescribed six months’ time. There is no exception, option or saving provision to it. Without an application for extension of time under rule 15.3.9, the Court has no jurisdiction to hear the matter.
11. There is abundance of precedents on this issue in our jurisdiction. One does not need to look far and beyond our own precedents for legal solution. For example, in Harry v Attorney General [2016] SBHC 145, Faukona J states at [17]:
    • “...a claim for judicial review must be filed within 6 months, see Rule 15.3.8, if not then an application for extension of time be made pursuant to Rule 15.3.9.”
12. Also, in Shung Wong v Attorney General [2018] SBHC 104, the Court when dealing with a question regarding the time for filing of a claim for a quashing order echoed at [49]:
    • “Rule 15.3.8 expressly stated a claim for quashing order must be made within 6 months, it is a mandatory provision without any exception or option.”
13. Perhaps, the most authoritative statements regarding the requirement of rule 15.3.8 was amplified by the Court of Appeal in Harry v Attorney General [2017] SBCA at [22]:
    • “The time limit in Rule 15.3.8 is mandatory. The power to extend that time depends on the court’s decision on the requirements of substantial justice; an issue which can only be determined by a hearing of the reasons for the failure to have made the claim in compliance with 15.3.8. If there has been no extension of that time, the court cannot hear the claim because it is no longer admissible for hearing and will not be unless and until the court decides substantial justice requires its renewal. To do that, the court must, inter alia, decide whether there are sufficient acceptable grounds to extend the time for bringing the claim and that will require a separate application by the potential claimant. At the hearing of that application, the reasons will be heard and all relevant parties will have an opportunity to oppose it. If successful, the applicant will then be required to comply with all other relevant rules under Chapter 15.3.”
14. It is crystal clear, as set out by the precedents of this jurisdiction, that the claim for judicial review must be filed within the six months prescribed period required under rule 15.3.8. Caution must be taken when referring to overseas decisions on the application synonymous to this rule as those decisions are only persuasive and might well reflect a legal practice different to our case based on overseas statutes and case laws.
15. In this case, the requirement that the claim herein must be filed within the six months is a statutory and mandatory requirement. As said by Duko v Kile [2019] SBCA at [41], it is purely a statutory privilege that can be exercised only in the manner and in accordance with the provisions of the law when the language of the statute is unambiguous. It cannot be circumvented or abrogated by the Court’s own volition unless upon an application for extension of the time. Most pertinently, it is not the duty of this Court to be astute in finding ways to defeat the mandatory requirement of the law.
16. The Respondent through counsel in his oral and written submissions emphatically submitted that the due date for filing the claim was on a weekend and therefore, he was unable to file the claim on time. By implication, the late filing of the claim should be naturally allowed or condoned. With respect, that argument is flawed for the sole reason that the Respondent should by then invoke rule 15.3.9. That is, he should first file an application for leave to file the claim out of time. Once the Court is satisfied with the application then time can be easily extended. Nothing has been done which is unfortunate.
17. A period of six months to find a lawyer and file the case in Court is a period of about 180 days in counting. Certainly, this is an ample time any prudent and diligent person can better utilise to file the claim. The law is so generous to judicial review cases in the allowance of such time period compared to other civil suits. Of course, other factors may affect the timely filing of the claim. However, rule 15.3.8 does not make any exception or exemption per se for the reason relied on herein by the Respondent. Hence, to rely on such reason on the impracticality or difficulty to file the claim on time due to the due date was on a weekend without the invocation of rule 15.3.9 is a horrific, if not, a grave excuse.
18. Having settled on those reasons, I uphold the application by the Applicants that by filing the claim outside the prescribed time, it now deprives this Court from having or acquiring the jurisdiction to hear the matter. This therefore amounts to an abuse of the Court’s process which is a ground for dismissal of the proceeding under rule 9.75 (c).
19. Besides and in view of the position taken by the Court in Paul Fota v Maximus International Limited HCSI CC No. 127 of 2023 regarding the wrong categorisation or nomination of the claim herein without an amendment, that also amounts to an abuse of the Court’s process. For the reliefs sought by the Respondent in the judicial review claim filed on 20^th November 2023 do not fall within the description of a Category A claim. However, this ground is only a subservient consideration to the principal ground relied on by the Applicants on the dismissal of the claim due to want of time barred.
20. The net effect of the reasons reached herein is now sufficient to dispose this matter without addressing the other ground (effectiveness of the claim due to improper service on the Applicants) advanced by the Applicants, as it can only be considered and addressed if I am satisfied that the claim was filed in time.
21. As a result of this finding, the other pending application for leave to enter default judgment against the Applicants/Crown filed on 1^st February 2024 now naturally dies with the claim.
22. Cost of and incidental to this application is to be paid by the Respondent to the Applicants on standard basis, to be taxed if not agreed.

Orders of the Court

1. The application to dismiss the claim for judicial review filed on 20^th November 2023 pursuant to rule 9.75 (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 is granted.
2. Consequently, the claim is entirely dismissed as it is time barred.
3. Cost of and incidental to this application is to be paid by the Respondent to all the Applicants on standard basis, to be taxed if not agreed.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court of Solomon Islands