Konelio and Others v Kaupule of Nanumaga [2010] TVHC 9; Case 13 of 2008 (23 March 2010)

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Kaupule of Nanumaga
Falekaupule of Nanumaga
Attorney General iro Ministry of Home Affairs
Defendants

T Malifa for plaintiffs
D Gorman for first and second defendants
F Niko for third defendant

[1] These four actions have each arisen from the problems which have followed the establishment of the Tuvalu Brethren Church (TBC) on Nanumaga and the decision of this Court in the case of Teonea v Nanumaga, HC 23/03, 11 October 2005. All these cases were brought by summons filed on 29 July 2008.

[2] In view of the similarity of the background circumstances of each case, I directed they should be tried together. The trial was delayed initially to allow attempts to mediate the dispute on Namumaga between the Falekaupule and the TBC. They were unsuccessful.

[3] In Talivai's case, 11/08, Poma and others, 12/08 and Konelio, 13/08, the action is brought against the Kaupule and the Falekaupule. In accordance with section 111(3) of the Falekaupule Act (see paragraph [7] below), they should have been brought against the Kaupule as agent for the Falekaupule. In Konelio's case, the claim also brought against the Attorney General representing the Ministry of Home Affairs. In Apipa's case, 10/08, the defendants are the Kaupule and the Kaupule Secretary in person.

[4] Affidavits have been filed by both parties in each case and no party has served notice of intention to cross examine. At the last hearing, the Court heard counsel's submissions in respect of liability and, should it arise, quantum.

[5] In two cases, namely those of Poma and others, 12/08, and Konelio, 13/08, the first and second defendants first plead the limitation imposed by section 112 of the Falekaupule Act. That section provides:

those of the Falekaupule or in exercise or intended exercise of any lawful power, or

(b) in respect of any alleged neglect or default in the performance of such function or exercise of such power,

the action must be commenced within 12 months of the act, neglect or default complained of or, if the damage or injury is continuing within 12 months after it ceases."

[6] The three plaintiffs in 12/08 claim that their employment was unlawfully terminated by the first and second defendants by letters of termination dated 2 June 2006 and the plaintiff in13/08 similarly claims her employment was unlawfully terminated by a letter on about 15th of August 2006 from the secretary of the Kaupule and Falekaupule. In both those cases the action was not commenced until July 2008 and is, therefore, statute barred as a result of the limitation placed on such actions by section 112.

[7] I note that section 111 of the same Act requires one month's notice prior to commencement of the action. There is no indication in any of the cases that any such notice was given. The section provides:

"111. (1) Any person intending to bring an action against a Kaupule shall, at least one month before commencing such action, give notice to the Pule o Kaupule either by himself or his agent, of his intention to do so.

(2) A notice under subsection (1) shall state the cause of action, the name and address of the intending plaintiff and the relief he claims.

(3) Any person seeking legal redress for any act or omission of a Falekaupule in respect of its statutory functions shall bring proceedings against the Kaupule as agent for the Falekaupule."

[8] However, appearance was entered by the defendants and a statement of defence filed and no objection has been taken to the lack of notice.

[9] The effect of those two sections is first that, by section 111 (3), all these cases should be brought against the Kaupule as agent of the Falekaupule and not against the Falekaupule itself and second that, by section 112 the actions were commenced well after the period of 12 months from the actions complained of.

[10] Counsel for the plaintiffs appears to be suggesting in his detailed and carefully prepared submissions that, even if the limitation period applies, it is still open to the plaintiffs to pursue remedies for breach of their Constitutional rights against the first and second defendants. I cannot accept that is correct. The Constitutional rights which he claims were breached were breached by the actions of the Kaupule and the resolutions of the Falekaupule. The claims are against those two bodies and the remedies equally are sought against those two bodies. The provisions of section 112 clearly apply and the cases cannot be pursued against the first and second defendants in either case.

[11] The result is that I must dismiss the claim by the three plaintiffs in case 12/08.

[12] Similarly I must dismiss the claim against the first and second defendants in this case but the plaintiff has also joined the Attorney General iro Ministry of Home Affairs as third defendant and that part of the claim is not caught by section 112.

[13] The statement of claim describes the third defendant as the former employer of the plaintiff and in paragraph 6 states:

"6. The third defendant was made aware of the letter of termination to the plaintiff in or around August 2006. The third defendant was in a position to intervene and take steps to avoid the dismissal and/or to reinstate the plaintiff to her work. The third defendant did not take any such steps and thereby constructively and unlawfully dismissed the plaintiff.

7. The manner in which the plaintiff was dismissed from her employment was harsh, unjust and oppressive, and caused the plaintiff humiliation and suffering.

8. The actions of the first, second and third defendant constitute unlawful discrimination on the basis of religion. The plaintiffs Constitutional right to freedom of belief, expression and association have been denied by the first, second and third defendants and have caused the plaintiff loss.

a. Denial of the plaintiffs constitutional right to freedom from discrimination on the basis of religion.

b. Denial of the plaintiffs constitutional right to freedom of belief, expression and association.

9. The actions of the first, second and third defendant have caused the plaintiff loss. The plaintiff continues to suffer loss as a result of the actions of the defendants.

a.Taulaga had been working within the Ministry of Home Affairs for 25 years. At the time of her dismissal, she received a fortnightly salary in the vicinity of $150, before deductions. She stopped receiving this allowance in or around late 2006. Due to the actions of the defendants it is unlikely that she will be able to obtain future employment on Nanumaga or within Government. She has suffered anxiety, stress and humiliation as a result of the actions of the defendants. She continues to suffer financial and other loss as a result of the dismissal."

[14] On that basis the plaintiff claims constitutional redress, declaratory relief, general, special, aggravated and exemplary damages all of which can only be claimed against the third defendant.

[15] Despite the wide ambit of the claim as pleaded, the case has been argued as a case of wrongful dismissal as a result of the plaintiff's membership of the TBC following a resolution of the Falekaupule on 21 April 2006 that, "if by the next meeting in the coming month, members of the TBC refuse to comply with the resolution, those members who are employed with the Kaupule will be terminated from employment." The resolution referred to was the Falekaupule's opposition to the presence of the TBC on the island in accordance with earlier resolutions restricting new "religions" on the island.

[17] The plaintiff's affidavit explains that the plaintiff used to work as the Women's Community Worker (Nanumaga Kaupule) and was seconded by Home Affairs to train women on Nanumaga in handicraft, sewing, cooking, and on any other instructions from the Secretary of the Kaupule. She states that the first defendant terminated her employment in 2006, she believed, as a result of her affiliation with the TBC. She continues:

"On 15 August 2006,Sefuteni Liku [the secretary of the Kaupule and the Falekaupule] wrote a letter to the Ministry of Home Affairs informing that I had been terminated from my work. The letter stated that I was banned from employment in any job on the island. I was too scared to inform the Ministry of Home Affairs of what the Kaupule had decided in regards to my employment. I never received a letter from the Ministry of Home Affairs to inform me that I had to stop working.

I received a salary at the bottom of level 8 of the civil servant list. This was my normal salary until the Government stop paying my salary in April 2007. I received a net salary of $226.29 per fortnight.

I verily believe that I have been targeted by the Falekupule and the Kaupule because of my affiliation with the TBC. This treatment has gone on for some time. On 19 April 20007 I sent a letter to the Ministry of Home Affairs to inform my pay was ceased."

[18] The affidavit of Sefuteni Liku confirms that the plaintiff was all relevant times an employee of the third defendant. He also confirms that by a letter dated 15 August 2006 he wrote to the Secretary of Home Affairs requesting that the plaintiff should be moved to another island, "as in light of the Falekaupule resolution any continued employment relationship on the island was against the ruling of the Falekaupule". Liku was informed that the plaintiff would continue to receive a salary from the Ministry and that is confirmed by the affidavit of Iete Avanitele who was the Director of Rural Development in the Ministry of Home Affairs at the time. It stated that the Ministry would continue to pay her salary until the case was settled in the High Court. He explains that the intention of the letter was "to let the Kaupule know that the Ministry did not in any way support its decision in terminating the plaintiff's employment". He believed, therefore, that the plaintiff was receiving her salary but was then advised by her in a letter of 19 April 2007 that she had stopped receiving her pay.

"The plaintiff was remunerated under the Falekaupule Grant which was controlled by the Ministry of Home Affairs and pay out by the Ministry of Finance. So, as to the ceasing of payment of the plaintiff salaries, it was my view that the Ministry of Finance should consult me or the Ministry of Home Affairs of its actions."

[20] The affidavit of Aunese Simati, who was Permanent Secretary for the Ministry of Finance and Economic Planning at the time, confirms that it was the Pay Committee of his Ministry which decided to stop the payment of the plaintiff's salary in March 2007 and suspended her name from the payroll. He continues:

"The decision to suspend payment of her salary was based from the fact that she was not working and that it was done for her own benefit, as whatever decision may arise out of her termination of employment, in this case by the Kaupule of Nanumaga, the government is more likely to be able to repay back her salary should her termination be ruled unlawful. In the event the court decides otherwise, and that her salary had been continued to pay, in our view would be difficult for the government to recover from her the amount that had been paid to her. This practice of suspension is done to all similar cases of those who overstay their leave entitlements, their studies, and even missing from work generally."

[21] Section 102(2) of the Falekaupule Act makes it clear that, although the plaintiff was seconded, responsibility, inter alia, for salary and civil service discipline remains with the Governrnment.

[22] I am satisfied on that evidence that the defendant's employment by the third defendant was terminated arbitrarily as a result of the actions of the first and second defendants directing her to stop working on Nanumaga because of her membership of the TBC. That termination took place despite that Ministry's disagreement with the reasons for it and was done with no reference to the plaintiff. There is no suggestion that any attempt was made to follow the procedure under the Falekaupule Act, the Public Service Act or the General Administrative Orders and I am satisfied the plaintiff was wrongfully dismissed.

[23] The submissions the Court has received in respect of damages have related almost entirely to the original claim against the first and second defendants. I am now considering only the level of damages which must be paid by the third defendant. In her affidavit the plaintiff points out that immediately prior to her salary being stopped in April 2007 she had received a net salary of $226.29 per fortnight and produces a payslip for the month of January 2007 confirming that figure.

[24] The normal basis on which damages are assessed is to attempt, as closely as is possible by a monetary award, to place the injured party in the position he or she would have been had the default not occurred. In cases of wrongful dismissal, the damages are generally assessed on the basis of what would have been payable had the dismissal been properly performed.

[25] In the case of Lamese v Kaupule of Nanumaga [2008] TVHC 7; HC 3/06, 27 August 2008, I suggested that, in such cases, other consequential loss should be considered because of the unusual circumstances in Tuvalu compared with those in larger jurisdictions where a realistic possibility of further employment is always present. That case also arose from the resolutions of the Falekaupule on Nanumaga in relation to the TBC. In that case, I stated:

"The purpose of damages is to compensate the actual loss cause by the wrongful dismissal. In this case, the loss is the wages that they would have received had proper notice being given but the Court must also consider any consequential loss flowing from the dismissal. The circumstances in Tuvalu, especially in the outer islands, are such that, the chances of paid employment a very limited. In consequence, any paid employment is valuable especially when it is with the Kaupule or any other public body. Any person in such employment will be likely to wish to keep that employment and I accept the evidence of the plaintiffs that they hoped to continue in their appointment in the foreseeable future."

[26] I made a similar reference in the case of Katea v Niutao Kaupule [2007] TVHC 1; HC 2/06, 26 October 2007.

[27] In the present case I must consider the manner in which the Ministry of Home Affairs dismissed this plaintiff but similar considerations apply. The affidavit filed by the defendant show that, in the opinion of Iete Avanitele, it was clear that the demands by the first and second defendants that the plaintiff should be dismissed were based on grounds with which the Ministry neither agreed nor supported. To their credit, they continued to pay her salary until April 2007.

[28] Unfortunately that was stopped by the Government following the decision of the Pay Committee. The only reason given for that was that the Pay Committee had "learned that the plaintiff was not in employment with the Kaupule of Nanumaga" and "decided to stop the payment of her salaries and suspended her name from the payroll".

[29] On the evidence before the Court, that was a totally arbitrary decision. No attempt was made to follow proper procedures. The plaintiff was not asked to make any representations and was not even told of the decision. The first she knew of her dismissal was the cessation of payments.

[30] As I stated in the Lamese case, the resolutions of the Falekaupule will ensure that the plaintiff will not find further employment on Nanumaga. I have no evidence of whether the third defendant could have continued to employ her in a similar capacity on some other islands or whether her family circumstances would have allowed her to take it but there is no evidence that any attempt was made to consider an alternative posting. It appears that such considerations played no part in their arbitrary termination of salary. She simply discovered, when the payments stopped, that she was no longer employed. As in the Lamese case, I consider a fair award for loss of earnings cannot be met simply by the normal term of notice and I shall award damages, as there, on the basis of two years salary.

[31] The plaintiff also claims exemplary or punitive damages. I bear in mind the limited situations in which Lord Devlin suggest such damages might be appropriate; Rookes v Barnard [1964] UKHL 1; [1964] 1 AllER 367 but I am satisfied this case falls firmly in the first of his three categories - that the loss occurred as a result of arbitrary actions by the servants of government.

[32] In those circumstances I award general damages of two years salary at $226.29 per fortnight making a sum of $11,767.00 and, to that, I add, as exemplary damages, an additional award of half that sum, namely $5,884.00.

[33] Napoe Talivai was employed at the Nanumaga branch of the Fusi. His wife is a member of the TBC. The statement of claim avers:

"4. The defendants unlawfully attempted to affect the termination of the plaintiff's employment by letters dated 15 August 2006, 27November 2007 and 7 January 2008, causing the plaintiff to suffer loss.

d. Breach of injunction order of the High Court dated 2 June 2006 and further orders of 11October 2007.

5. The plaintiff has been victimised by the defendants. The manner in which the defendants treated the plaintiff was harsh, unjust and oppressive, and constituted a denial of the plaintiffs rights under the Constitution. The plaintiff has suffered humiliation, anxiety and exclusion from his community as a result of the defendant's actions.

a. Denial of the plaintiff's Constitutional right to freedom from discrimination on the basis of religious beliefs.

b. Denial of the plaintiff's Constitutional right to freedom of belief, expression and association."

[34] The claim is for Constitutional redress, declaratory relief and general, special, aggravated and exemplary damages.

"3. Save to admit that the first defendant wrote to the plaintiff's employer and demanded that the employer terminate the plaintiff for disobeying the resolutions of the traditional assembly of the second defendants the first and second defendants denied paragraph 4 of the statement of claim.

4. The first and second defendants deny paragraph 5 of the statement of claim and say further that:

a. On 21 November 2001, a traditional assembly of the second defendants passed a resolution banning new religions on Nanumaga because the introduction of new religions on the Island was considered to be divisive to the traditions and customs of Nanumaga.

b. On 11 July 2002, a traditional assembly of the second defendants reaffirmed this decision.

c. On 4 July 2003, a traditional assembly of the second defendants reaffirmed the decision that new religions were not to be allowed on the island.

d. On 11 October 2005, the High Court delivered its judgement in Teonea v Kaupule and upheld lawfulness of the resolution made by the second defendants in their traditional assembly on 21 November 2001 and 4 July 2003.

e. On 21 April 2006, a traditional assembly of the second defendants passed a resolution to take measures to enforce its previous resolutions and to terminate all members of the TBC from employment with the Kaupule if they continued to refuse to comply with the resolutions of the traditional assembly of the second defendants.

f. The plaintiff refused to comply with the resolutions of the traditional assembly of the second defendants and continued to worship and attend prayer meetings of the TBC on Nanumaga, in disobedience of the resolutions passed by the traditional assembly of the second defendants.

g. In the circumstances of sub-paragraphs (a) to (e) above, the plaintiff's actions in subparagraph (f) were reasonably considered by the traditional assembly of the second defendants to be:

h. The letters sent to the plaintiff's employer were sent pursuant to the traditional authority of the traditional assembly of the second defendants and were not acts done under any law."

[36] It is clear the defendants do not challenge the fact that the letters were written to the Tuvalu Co-operative Society (TCS) pointing out that the Falekaupule had resolved that the plaintiff would never again be allowed to hold posts on the island. The plaintiff deposes in his affidavit that the first was sent in August 2006 another in November 2007 and a third on 7 January 2008. The third letter states that the Falekaupule had resolved to close the branch of the Fusi if the plaintiff continued to work for the TCS. At the time he was on leave and returned on 10 January 2008. That same day, the Fusi was closed down. A week later it was reopened and the plaintiff continued to work until November 2008 when he again came to Funafuti for a hearing in the High Court. On his return to Nanumaga in December 2008, he received a letter from the manager terminating his employment.

[37] The plaintiff's case is that this termination was the result of repeated pressure by the Falekaupule because of the plaintiff's association, through his wife, with the TBC. It is important to bear in mind that this is not a claim against the TCS for unlawful dismissal. It is in effect, a claim against the first and second defendants for intimidation; that the defendants intentionally caused the TCS to inflict damage on the plaintiff. Whilst I accept that considerable pressure was placed on the plaintiff's employer by the defendants, I am not satisfied that the plaintiff has proved that this was an improper act in terms of the second defendant's traditional role nor am I satisfied that it did, in fact, cause the plaintiff any loss. I take those two aspects in that order.

[38] The judgment in Teonea v Kaupule, referred to in paragraph 4(d) of the defence, was the first of a number of challenges by the TBC to the resolutions of the Falekaupule banning new "religions" from the island. In that judgment, I ruled that the Falekaupule was entitled to restrict a new church from being introduced to the island if it felt its presence was likely to be divisive and unsettling and/or would constitute a direct threat to the values and culture of the majority of the island community.

[39] The High Court decision was appealed but, unfortunately, the appeal was not heard until 2009. In a decision handed down on 4 November 2009, the majority decision was that those resolutions breached the Constitution in particular the right to freedom of religion. Following that decision, the Constitution was amended.

[40] In their submissions, Mr Malifa and Mr Gorman referred to both the judgments in the High Court and the Court of Appeal and the subsequent Constitutional amendments. However, in considering the defence, I must bear in mind that, as far as the Falekaupule was concerned, the law following the High Court decision supported their right to restrict the exercise of some rights and freedoms if there were reasonable grounds for believing there may be divisive, unsettling or offensive to the people or may directly threaten Tuvaluan values or culture under section 29 (4) of the Constitution.

[41] As I have stated that conclusion was reversed by the Court of Appeal decision in November 2009 but between October 2005 and November 2009 the Falekaupule was entitled to accept it as a statement of the law as it stood at that time. Whether or not the actions I am considering would have fallen foul of the Court of Appeal decision is not a relevant matter. I must ask myself whether the actions of the first and second defendants complied with or breached the position stated in the High Court judgment. Considered on that basis, the plaintiff has failed to prove to the civil standard that the Falekaupule believed it was doing otherwise than exercising its traditional role.

[42] The second aspect relates to any loss suffered by the plaintiff as a result of the defendants' pressure on the TCS. As I have stated, the Falekaupule and the Kaupule were undoubtedly putting pressure on the Fusi. The defendants filed an affidavit from Pai Teatu, the manager of the Nanumaga Fusi. In that affidavit he mentions that he "protected" the plaintiff's employment. He contacted the General Manager for confirmation that the terms and conditions would not permit employees to be terminated on the basis of religious affiliation and that the Fusi constitution "does not agree with theFalekaupule resolution on relating to employment of people who practice particular religions. The only requirement for employment at the Fusi is that a person be a member of the Fusi." It is clear they applied that and continued to employ the plaintiff for more than two years despite repeated letters from the Kaupule.

[43] In dealing with the determination of the plaintiff's employment, the Fusi manager deposes to attending a meeting of the TCF in Funafuti in November 2008 at which it was decided to reduce the workforce on Nanumaga, Nanumea, Niutao and Vaitupu. On his return to Nanumaga, he had a staff meeting to seek a volunteer for redundancy. The plaintiff was not present as he was in Funafuti for the High Court sitting. It appeared at that meeting that the atmosphere prevailing between the plaintiff, on the one hand, and his fellow staff and their customers, on the other, was generally strained. The TCS employment structure requires the Branch Manager to recommend a person to be made redundant if there are no volunteers and he decided, for that reason, it was appropriate to recommend the plaintiff.

[44] He exhibits to his affidavit the correspondence which ensued with TCS headquarters and the plaintiff. I do not set it out but it reinforced the manager's view that the plaintiff's relationship with the rest of the staff was strained. The plaintiff's initial response to the suggestion he was being made redundant was to level a series of accusations against each of the other employees which gives further weight to the suggestion of bad work relationships.

[45] Eventually the correspondence shows that the plaintiff accepted redundancy and received a redundancy package of $6,642.00. It is clear to me that the termination of the plaintiff's employment was the result of that redundancy and I am not satisfied that the plaintiff has proved it resulted in any way from the involvement of the defendants. The plaintiff's claim against the first and second defendants is dismissed.

[46] The plaintiff in this case resides on Nanumaga and applied for the vacant position of cleaner for the island Primary School. The first defendant is the Kaupule and the second defendant, Poutoa Soani, was the Pule o Kaupule at that time. The statement of claim describes him as a Member of the Kaupule Nanumaga and states that he is sued in his personal capacity. He has since died and the action cannot be sustained against him.

[47] There is no dispute that at a meeting of the Kaupule on 18 April 2008 it was resolved to advertise the post "for the peoples of the island to know and to apply" and that all applications should be forwarded to the Secretary. A closing date given. At the next meeting on 6 May 2008, the minutes simply state:

"Decision: Ms Nanuseni M [Manutoga]was appointed to be the cleaner of the Primary School."

[48] The statement of claim, after referring to those background facts, continues:

"7. During the meeting, the defendants excluded the plaintiff's application from consideration. The plaintiff was removed from the pool of applicants. The decision to disqualify the plaintiff's application was made by the second defendant and endorsed by other members of the Kaupule.

8. The plaintiff's application was disqualified by the defendants wholly or mainly because she was a member of the TBC. The plaintiff has been treated less favourably by the defendants wholly or mainly because of her religious beliefs. The decision to disqualify the plaintiff's application from consideration was unlawful and has caused the plaintiff lost.

9. The plaintiff has lost the opportunity of employment as a result of the defendant's actions. She is unlikely to be able to obtain future employment on Nanumaga as a result of the defendants' actions. She has suffered humiliation and embarrassment due to the defendants' actions."

[49] The burden is on the plaintiff to prove those allegations. The only evidence presented by the plaintiff is her own affidavit. The matters on which she relies in that affidavit are a series of reports and comments by other people who have not submitted any affidavits. As it stands, the claim would have to fail. However the defence in paragraph 3 admits

"... that the first defendant decided to remove the plaintiff's application from consideration because the plaintiff had disobeyed a decision of the Falekaupule".

[50] It then raises a defence in identical terms to that set out in reference to Talivai's case in paragraph [31] (above).

[51] The defence relies on the affidavit of Sefuteni Liku which makes no reference to such matters in respect of this plaintiff.

[52] In those circumstances there is no evidence of either party's case. Whilst the defendants admit her name was taken off the list of applicants for failing to obey the resolution of the Falekaupule, there is no evidence of that fact any more than there is evidence from the plaintiff to support her claim that it occurred because she was a member of the TBC.

[53] However, in view of the admission of the defendant, I have considered the actions of the Falekaupule and of the first defendant and have come to the same conclusion in that respect as I have in Talivai's case (see paragraph 37 above).

Angikelia Apipa v Kaupule of Nanumaga and Poutoa Soani, 10/08	Claim dismissed

Napoe Talivai v Kaupule of Nanumaga and Falekaupule of Nanumaga, 11/08	Claim dismissed

Patisepa Poma, Saimila Petaia and Kavapua Napoe v Kaupule of Nanumaga and Falekaupule of Nanumaga, 12/08	Claim dismissed

Taulaga Konelio v Kaupule of Nanumaga, Falekaupule of Nanumaga and Attorney General iro Ministry of Home Affairs, 13/08	Claim against first and second defendants dismissed Judgment for the plaintiff against the third defendant. Third defendant to pay$11,767.00 general damages and $5,884.00 aggravated damages

High Court of Tuvalu

Konelio and Others v Kaupule of Nanumaga [2010] TVHC 9; Case 13 of 2008 (23 March 2010)