IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.15/21

BETWEEN   

PAKASOA LAULENESE		APPLICANT

AND

KAUPULE OF NUKUFETAU		FIRST RESPONDENT

FALEKAUPULE NUKUFETAU	SECOND RESPONDENT

Before:	Hon Judge   Sir John Muria

Hearing:	20th June 2022	

Ms F. Telii for Applicant
Mr A. Peniasi for Respondents

J U D G E M E N T

Muria J:	The applicant applies for leave to issue judicial review of the respondent’s decision made on 29th December 2020 terminating the employment of the applicant with the respondent.  The relief to be sought in the substantive application, if leave is granted, are orders for certiorari, Declarations, Mandamus and Costs.  For the purpose of this case, I shall treat the First Respondent, Kaupule of Nukufetau as “the respondent” and the Second Respondent as “the Falekaupule of Nukufetau”.

BRIEF BACKGROUND

2.	The brief background facts of the case are that the applicant was employed by the respondent Kaupule of Nukufetau, as Assistant Secretary of the Kaupule of Nukufetau on 21st October 2019.  On 11th December 2020, following a letter written on behalf of some of the staff of the Kaupule, the Falekaupule of Nukufetau met and decided to terminate the applicant’s employment.  The respondent terminated the applicant on 29th December 2020. 

3.	The applicant was neither given the opportunity to respond to the allegations contained in the letter of 11th December 2020 nor to be heard before the Falekaupule made its decision on 29th December 2020.  The decision of the Falekaupule was conveyed to the applicant in a letter dated 12th January 2021.

4.	It is important to note that on 29th March 2021 the Secretary to the Ministry of Local Government and Agriculture (MLGA) wrote to the respondent (Pule Kaupule of Nukufetau) basically admonishing the respondent for terminating the applicant.  The Ministry told the respondent that the Falekaupule of Nukufetau did not possess the power to terminate the applicant’s employment and as such the termination was unlawful.  The Secretary to the Ministry of Local Government and Agriculture informed the respondent that the Ministry was reinstating the applicant to his position as Assistant Secretary of the Kaupule of Nukufetau with effect from 29th March 2021.

5.	The applicant file his application on 25th August 2021 supported by his own affidavit dated 22nd August 2021.

	Defendant revoked its decision and re instated Applicant

6.	Following the letter from the Secretary to the MLGA to the Pule Kaupule of Nukufetau, the Falekaupule of Nukufetau met on 6th December 2021 and revoked their decision on the termination of the applicant’s employment and reinstated the applicant to his position as Assistant Secretary of the Nukufetau Kaupule.  The decision was relayed to Counsel for the respondent on 8th January 2022 by email (paragraph 7 of the affidavit of Sopoaga Saufatu, Secretary of the Kaupule of Nukufetau).  The re-instatement was effective as of 6th December 2021.

7.	As regard the applicant’s salary, the affidavit of Tepalalau Maukuuku who is the Payroll Manager at the Treasury Department in the Ministry of Finance, revealed that the applicant’s salary has never been ceased.  Throughout the period of his purported termination, the applicant continued to receive his salary and still continues to do so.  This is confirmed in paragraphs 5, 6 and 7 of the affidavit of Tepalalau Maukuuku sworn to on 14th June 2022.  Effectively, the applicant’s salary had been paid to him and continued to be paid to him as if he had never been terminated at all.

8.	In his affidavit sworn to on 22nd August 2021, the applicant stated that despite the letter from the Secretary to the MLGA dated 29th March 2021, the respondent did not reinstate him.  I accept that as of the 22nd August 2021 when he swore his affidavit, there had been no indication from the respondent that he was reinstated to his position as Assistant Secretary of the Nukufetau Kaupule.  However there is evidence before the Court that on 6th December 2021, the Falekaupule of Nukufetau revoked their decision terminating the applicant’s employment and reinstating him to his position as Assistant Secretary of the Nukufetau Kaupule.

9.	The applicant has been silent on the fact that he has been re-instated throughout this case. Perhaps, either he did not know that he was reinstated in his employment as Assistant Secretary to the Kaupule of Nukufetau or he knew but has avoided mentioning that he had been reinstated.  If it was the former, one would have expected the applicant, in the light of the indication given in Court by the respondent, through Counsel on 16th May 2022, that the respondents had already reinstated the applicant, to bring some evidence by way of affidavit to confirm or deny being re-instated to his position in the Kaupule of Nukufetau.  If it was the latter, then the only conclusion that can be drawn from that he has not been forthright about his claim against his opponent.  In either case, it does not help his case.

10.	The Court also notes that on 16th May 2022, Counsel for the respondent mentioned in Court that he informed Counsel for the applicant of the fact that the applicant had been reinstated to his position of employment.  The affidavit of Sopoaga Saufatu subsequently confirmed the re-instatement.  On 6th June 2022 Counsel for the applicant confirmed in Court of being told by Counsel for respondent that, the respondent had reinstated the applicant.  Yet up to now the applicant has neither confirmed nor, denied that he had been reinstated to his position by affidavit or otherwise.  The Court must accept that he had been reinstated since 6th December 2021 but left wondering why the applicant has not confirmed or denied his reinstatement?

	Applicant continues to receive salary

11. 	Then there is the question of his salary payment.  There is evidence before the Court that the respondent has never ceased payment of the applicant’s salary at all.  Even during the period he was purportedly terminated, his salary had been paid to him and continuing to be paid to him up to the present moment.  The affidavit evidence of Tepalalau Maukuuku confirmed that the payment of the applicant’s salary has never been stopped at all.  Yet not a single evidence from the applicant confirming or denying that his salary has continuously been paid to him.  The point is put pointedly by Sir John Donaldson M.R. in R –v- Lancashire County Council ex p. Huddleston [1986] 2 A11ER 941 at 945 g that “Judicial review is a process which falls to be conducted with all the cards face upward on the table.” The burden is on him to establish his claim and by not placing his cards face up, he is not helping his case.

12.	As with of his reinstatement, the applicant has also not been forthright with the fact that he has continued to receive his salary through his purported termination up to the present moment.  The only conclusion that the Court can come to is that the applicant had been reinstated to his position as Assistant Secretary of the Nukufetau Kaupule and that the respondents have never ceased to pay the applicant’s salary at all. 

Whether leave should be granted.

13.	The power to grant leave is discretionary and the Court may refuse to grant leave for a very good reason such as delay in seeking leave or if the grant of leave would cause hardship or would be prejudicial to the other party or any person or detrimental to good administration.  See Maharaj –v – National Energy Corporation of Trinidad and Tobago [2019] UKPC 5.  Similar position of the law was stated by the Court in the same case as follows:

“ If there is good reason shown for extending time, the Court may    grant an extension.  But even if the Court considers that there is good reasons it may still refuse leave if the granting of the relief sought would be likely to cause hardship or prejudice or be detrimental to good administration”.

14.	In the present case delay is not an issue and neither of the parties made any submission on it.  Nevertheless, the issue of whether leave should be granted or not, is the focus of the Court’s considerations in view of the fact that first, there is an application for leave before the Court.  Secondly, the impugned decision of the respondent had been rescinded and the applicant has been reinstated, and thirdly, the circumstances of the applicant himself.

15.	The relief sought in the substantive case for which leave is now being sought are:

“  A.	An order for certiorari to remove into this Honourable Court the decision made to terminate the employment of the Applicant as Assistant Secretary of the Kaupule of Nukufetau;

B.	A declaration that the termination of the Applicant’s employment with the Kaupule of Nukufetau was made contrary to sections 107 of the Falekaupule Act and the procedures of termination of employment under the Kaupule Staff Guidelines and ins therefore unlawful, void and of no effect;

C.	A declaration that the act by the Second Respondent to terminate the employment of the Applicant with the Kaupule of Nukufetau was made ultra-vires and ins therefore unlawful, void and of no effect;

D.	A declaration that the process taken by the Falekaupule assembly of Nukufetau to terminate the employment of the Applicant as Assistant Secretary of the Kaupule of Nukufetau breached the rules of natural justice, ins therefore was wrong in law as it was tainted with bias, impartiality, and made one sided without giving the Applicant an opportunity to answer the allegations of office misconduct; 

E.	An Order for MANDAMUS directing the Kaupule of Nukufetau reinstate the Applicant- Mr Pakasoa Laulenese to the position of Assistant Secretary and to back pay his lost remuneration as a result of this wrongful termination.

F.	An order for Costs, the amount of which and particulars thereof to be provided for at trial/hearing; and

G.	Such further declaration and any other relief that this Honourable Court deems just and equitable.

16.	The first order sought is certiorari to remove into this Court the decision made to terminate the employment of the applicant as Assistant Secretary of the Nukufetau Kaupule. There is no dispute from the respondent that the decision by the Falekaupule to terminate the applicant’s employment was ultra vires and unlawful on advised by the Office of the Attorney General and conveyed to the respondent in a letter dated 29th March 2021 from the Secretary to the MLGA.  In fact, it was as a result of the opinion of the Office of the AG based on sections 100, 104 and 107 of the Falekaupule Act, that led the Falekaupule to rescind its decision before this application was fixed for hearing.   

17.	The relief of certiorari is premised on the existence of the impugned decision for the purpose of it being quashed.  There is evidence before the Court and has been confirmed that respondent’s decision made on 29th December 2020 terminating the applicant had been rescinded by the Falekaupule of Nukufetau and that the applicant had been re instated in his position as Assistant Secretary of the Nukufetau Kaupule.  What is the effect of that rescission?  In my view, the rescission of the Falekaupule’s decision and reinstating the applicant to his position renders the impugned decision no longer has any legal effect and is no longer extant.  The relief of certiorari, therefore, is no longer applicable in this case since there is no longer any decision of the respondent to be brought into this Court to be quashed.  Consequently, leave to issue certiorari proceedings cannot be granted and must be refused.

18.	Although the remedy of certiorari no longer necessary, in principle the Court can still consider and make declaration if appropriate.  However, the three declarations sought are all very much dependent on the order of certiorari being successfully sought.  The undisputed fact, that the decision to terminate the applicant’s employment had been rescinded and the applicant had been reinstated to his position, would render the declaratory relief meaningless in this case.

19.	Equally, an order for mandamus to re-instate the applicant would be a nugatory and a pointless exercise to consider in this case.  Re-instatement of the applicant in his position as Assistant Secretary of the Nukufetau Kaupule had already been done by the respondent.

20.	Counsel for the applicant noted, in her submission that the Falekaupule had revoked their decision to terminate the applicant and had re-instated him.  Counsel submitted that damages had been done and so the applicant still seeks judicial review.  The Court has not been told what those damages are.  However, if the damages are financial loss, the unchallenged evidence of Tepalalau Maukuuku, the Payroll Manager at the Treasury, in the Ministry of Finance is that the Applicant’s salary had never ceased and that he continued to receive his pay throughout his purported termination, even the present. In any case, since leave clearly cannot be granted in this case, his remedies for damages or loss (if any) he incurred must lie elsewhere and not by way of judicial review in the circumstances of this case.
 
21.	As I mention earlier the applicant’s silence on the fact that he has been receiving his salary throughout the period he was purportedly terminated and still continuing, as well being reinstated in his position as Assistant Secretary of the Nukufetau Kaupule show that he has not been fortnight with his claim in this case.  It would be contrary to the principles of good administration if the Court ignores the applicant’s conduct.

22.	For all the above reasons, the applicant’s application for leave to issue judicial review in this present case is refused.

	Dated on the 27th day of June 2022.

Sir John Muria
Judge