IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 02/10

BETWEEN:

PAPALII PANOA MOALA of Ululoloa, Businessman
Appellant

AND:

THE ATTORNEY GENERAL OF SAMOA, sued for and on behalf of the Cabinet Ministers of the Independent State of Samoa
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: TRS Toailoa for appellants
P Bednall and MT Lui for respondent

Hearing: 21 September, 2010

Judgment: 24 September, 2010

JUDGMENT OF THE COURT

A. The appeal is dismissed.

B. The application for special leave to cross-appeal out of time is declined.

C. The appellant must pay the respondent $2500 for costs.

REASONS OF THE COURT

1.	The appeal is against a decision of the Chief Justice striking out two grounds of the appellant's statement of claim seeking damages for failure to renew for three years his contract of employment as General Manager and Chief Executive Officer of the Samoan National Provident Fund Board. The Attorney seeks special leave to cross-appeal out of time to advance a new argument that the third ground, based on the equal protection provision (Article 15(1)) of the Constitution of Samoa, should also be struck out.

Context of appeal

2.	The appellant was first appointed General Manager in May 1997, for a term of two years. Renewals were made in 1999 for a further two years, in 2001 and 2004 for terms of three years each and in 2007 for a final term of one year, expiring on 17 January 2008. So the appellant served a total term of 11 years.

3.	An advertisement following the third renewal, in about 2006, referred to the next term being of three years and the appellant applied to be reappointed for such term. At the end of the interviewing process, conducted by the board of the Provident Fund, the chairperson told the appellant the board would recommend him to Cabinet for reappointment for a further three year term.

4.	Cabinet however recommended to the Head of State that the appellant be offered appointment for a term of only one year. The appellant contends that such decision is actionable by him on the grounds:

(1) he had a legitimate expectation to be appointed for a term of three years and the State is liable in damages for breach of such expectation;

(2) Cabinet's decision not to renew his appointment for the full three years was unreasonable, malicious and not in good faith and constituted the tort of misfeasance in public office for which the State is liable in damages;

(3) Cabinet had treated the Clerk of the Legislative Assembly and the Secretary of the previous Head of State on a basis that was more favourable than its treatment of him and thereby infringed his right under Article 15(1) to equal treatment under the law so as render the State liable to pay him damages.

Discussion

The appeal 

5.	The first and second grounds are patently without merit. 

Legitimate expectation

6.	As to the former:

(1) breach of "legitimate expectation" has never constituted a cause of action in tort. Counsel for the appellant could cite no authority supporting the introduction into private law of this public law concept, the scope of which has yet to be fully determined. There may be grounds for the common law to reappraise the scope of liability for breach of public law obligations. But because of the points that follow this is not a suitable case to enter upon any such enquiry.

(2) Here there was no breach of any legitimate expectation. The only expectation that could be relied upon in any way was that the board of the Provident Fund would recommend to Cabinet that the appellant be reappointed for three years. It did just that.

(3) The appellant's argument required the Court to treat the board of the Provident Fund as both recommending party and concurrently as agent for Cabinet which was bound to accept the recommendation as if it were the decision of a delegate. That is untenable. Cabinet was constitutionally bound to make its own decision and not to simply rubber stamp the recommendation of the board of the Provident Fund.

Misfeasance in public office

7.	The claim for misfeasance in public office is no more substantial. After discussing authorities from England, Australia and New Zealand the Supreme Court of Canada in Odhavji v Woodhouse [2003] 3 SCR 263 held at [22] that the tort can arise in two ways. The appellant relied on the particular formulation that there is liability on the State if a public officer acts with knowledge both of having no authority to perform the conduct complained of and that it is likely to injure the plaintiff. 

8.	There is however no pleading of particulars to support any such allegation. Cabinet possessed authority to accept in whole or part or to reject the advice of the board of the Provident Fund. Since it had that authority it cannot have acted with knowledge of lacking it.

The application for special leave to cross-appeal 

Article 15(1)

9.	The judgment of the Chief Justice stated:

102. Counsel for the Attorney General…submitted that Article 15(1) does not confer on individuals the right to receive the same employment benefits as someone else. As a general proposition this may be acceptable. But I think that the complaint by the plaintiff is not restricted to the amount of the end of term benefits that were paid to him. His complaint is also direct to the basis on which his end of term benefits were calculated. He is in effect saying that the end of term benefits paid to the former Clerk of the Legislative Assembly and the secretary to the previous Head of State were assessed on the basis of their total years of service to the government regardless of which organ of State they were employed in whereas that was not done with him.

The appellant argues that such conduct would infringe Article 15(1) of the Constitution.

10.	Article 15 provides:

Freedom from discriminatory legislation - (1) All persons are equal before the law and entitled to equal protection under the law.

(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them. 

The Supreme Court did not strike out the cause of action alleging breach of Article 15(1). 

11. In The Samoa Party v Attorney General [2010] WSCA 4 we stated:

27…Art 15(1) is not to be read in isolation from 15(2).

28 Read as a whole Art 15 is dealing with the familiar human rights problems of discrimination by reference to deep-seated personal characteristics, not failure to meet a certain percentage vote at a particular election.

12. In the light of that formulation, made after the time for appealing in the present case had expired, the Attorney made application for special leave to cross-appeal the decision of the Supreme Court that the appellant be permitted to advance a cause of action alleging breach of Article 15(1).

13. Counsel for the Attorney submitted that we should construe the Samoa Party case as a definitive decision that Articles 15(1) and 15(2) do not contain separate rights; that Article 15(2) provides the only attributes upon which unequal treatment by the law will be found unlawful. So, they argued, this Court should determine that the broader approach adopted in Vaai v Lene [1996] WSCA 8 no longer represents the law.

14. Counsel for the appellants challenged the Attorney's interpretation and contended for the meaning that a person cannot be subjected to any restriction, or afforded a benefit, solely on the ground of their descent, their sex, or any other stipulated ground.

15. There are substantial arguments marshalled on both sides. Each supported their respective argument with careful analysis of constitutions and authorities in other jurisdictions, notably the European Human Rights Convention and the Canadian Charter of Rights and Freedoms. But what matters is the jurisprudence of Samoa. As to that, neither the Samoa Party case nor Vaai v Lene purported to furnish a declaratory judgment upon the construction of Article 15(1). Since the argument had not been presented to the Supreme Court we do not have the advantage of the Chief Justice's opinion upon it.

16. If the issue turned on a principle of private law we would have been minded to determine it rather than impose on the parties the cost and delay of a trial which would be unnecessary if the Attorney is right. If Parliament disagreed it could change the law. But constitutional decisions, which cannot be altered by legislation, are not an appropriate vehicle for short cuts. One lesson of constitutional jurisprudence is that each generation throws up new problems which require fresh analysis of the underlying provisions. Another is the unwisdom of appellate courts' embarking on adjudication of important issues without the benefit of the opinion of (here) the Supreme Court. That is particularly so in the case of a court such as this from which no appeal lies in respect of what would be a decision of first instance. And it is especially the case where the issue concerns a constitution, the broad language of which is open to a continuum of senses that cannot be identified away from a quite specific context. A constitutional court is well advised to adopt a minimalist approach and to avoid construing a text apart from the specific facts hammered out at trial. That is why in other jurisdictions leave to appeal is declined where a new constitutional point is sought to be run. 

17. This Court will await the decision of the Supreme Court upon the arguments before expressing its own opinion.

DECISION 

18. The appeal is dismissed.

19. Leave to cross-appeal is declined.

20. The Attorney has succeeded on the issues on which we have pronounced but not on his application for special leave. He is entitled to 50% of the costs that would have been awarded in the absence of such application, namely $2500. 

Honourable Justice Baragwanath

Honourable Justice Slicer

Honourable Justice Fisher