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Tagaloa v Mataafa [1996] WSCA 5; 03 1996 (28 August 1996)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 3/96

BETWEEN

PROFESSOR ALONO DR FANNAAFILE TAGALOA
of Alafua, University Professor
Applicant/ Plaintiff

AND

HONOURABLE FIAME NAOMI MATAAFA
of Motootua, Minister of Education and Pro-Chancellor
First Respondent

AND

TAUAVEMEA L. PALEPOI
of Malifa, Vice Chancellor, and
THE COUNCIL OF THE NATIONAL UNIVERSITY OF SAMOA
established by Sections 7 & 8 of the National University of Samoa Act 1984
Second Respondents

Coram: The Rt Hon. Lord Cooke of Thorndon, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Hearing: 28 August 1996

Counsel: T. Malifa for Appellant
Ruby Drake for Respondents

Judgment: 28 August 1996

JUDGMENT OF THE COURT DELIVERED BY
LORD COOKE OF THORNDON

This is a civil case relating to a claim by a university professor to the effect, putting it shortly, that her employment at the National University of Samoa has not lawfully come to an end. Application was made on her behalf for an interim injunction to restrain the first respondent and others from carrying out or implementing a decision by the Council of the National University of Samoa or the Vice-Chancellor to terminate and remove the applicant from her post as Professor of Samoan Language and Culture and to restrain the second respondent or any person acting under their authority or direction from advertising the post of the applicant.

That motion was initially to be moved ex parte, but the Chief Justice directed that the hearing should be on notice to the respondents. There was then a hearing before him on 5 March 1996. On 11 March 1996, for reasons fully and clearly given by him, he dismissed the motion for an interim injunction while making it clear that it was still open to the plaintiff to proceed to a substantive hearing of her case.

From that interim decision the plaintiff seeks to appeal to this Court. The difficulty is that it appears that no leave to appeal has been granted or even formally sought, yet special leave is acknowledged to be required under s.45 of the Judicature Ordinance 1961 or Art. 80 of the Constitution, those provisions being in virtually identical terms. The relevant provisions of Section 45(2)(a) and (b) read as follows:

45. Jurisdiction

...

(2) (a) An appeal lies to the Court of Appeal from any decision of the Supreme Court in any proceeding, if the Supreme Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution:

(b) Where the Supreme Court has refused to give such a certificate, the Court of Appeal may, if it is satisfied that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution, grant special leave to appeal from that decision:

It is unnecessary to refer now to the other provisions of s.45.

The Supreme Court here has not certified that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution, nor has it refused to give such a certificate for it has not been asked for one. Moreover, from what we have been told of the case by counsel for the would-be appellant, Mr Malifa, this Court is far from satisfied that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution or any other substantial question of law. Counsel has claimed that his client's rights have been breached in particular her rights to a fair trial, which are guaranteed by Art. 9 of the Constitution, by the way in which the Chief Justice dealt with the interlocutory application. That contention is, with all respect to counsel, misconceived. The Chief Justice was bound in accordance with the well-established principles as to interlocutory injunction applications to consider whether there was a serious question to be tried. Commonly that is the very first question considered by a Court facing an application for an interlocutory injunction and the Chief Justice on the material before him held there was not a serious question to be tried.

In case it is of any assistance to the appellant in deciding on her future course of action, we comment that we can well understand why the Chief Justice reached that view on the evidence and arguments before him. It is conceivable that there may be evidence or arguments relevant in the cases, which were not before him. Be that as it may, it is abundantly clear that although he refused interim relief and although the absence as he saw it of a serious case to be tried was an important ingredient in his decision in no way did he purport to fetter the Court if and when the case should come to a substantive hearing. So much is perfectly plain from the reasons given by him for his ruling. In truth he dealt with the interim injunction application in an entirely appropriate way as required by numerous authorities in various jurisdictions. Indeed he would have been failing in his judicial responsibility having regard to those authorities if he had not considered the matter of a serious question to be tried. His decision involved no question of law as to the interpretation or effect of any provision of the Constitution.

In all these circumstances, we are quite satisfied that this appeal does not lie without leave and that even if we had jurisdiction to grant leave ourselves in the absence of any certificate by the Supreme Court, it would not be an appropriate case for us to grant leave. Accordingly the purported appeal now before us must be dismissed. We should add, as canvassed with counsel during the hearing just concluded, that should the appellant elect to pursue the case to a substantive hearing and should she be concerned that the Chief Justice has already expressed a view about the applicable law or the facts in his interlocutory decision, it is open to her to request that the substantive hearing take place before another Judge. All issues will remain open at a substantive hearing.

It should also be added that Mr Malifa placed no reliance on ss.51 and 54 of the Judicature Ordinance 1961. This is not surprising, in view (inter alia) of non-compliance with the provisions regarding security for costs.

As to costs, there have been irregularities (to use a conservative expression) in the procedure leading to this hearing. We consider that the respondents should have costs of today's hearing in any event, and we fix the amount at $300 together with any recoverable disbursements, to be settled by the Registrar.

Solicitors:
Libra Law & Consultancy, Apia, for Appellant
Drake & Co., Apia, for Respondents