K'Clay v Attorney General [2014] SBCA 2; SICOA-CAC 09 of 2014 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Apaniai J.)
COURT FILE NUMBER:	Civil Appeal Case No. 9 of 2014 (On Appeal from High Court Civil Case No. 362 of 2013)
DATE OF HEARING:	6 April 2014
DATE OF JUDGMENT:	9 MAY 2014
THE COURT:	Justice Goldsbrough, P., Justice Williams JA., Sir Gordon Ward, JA.
PARTIES:	Hugo K'Clay and Richard Moka -V - Attorney-General and Jerry Hong Sun
Advocates: Appellant: 1stRespondent: 2nd Respondent:	Mr Anderson Kesaka Mr John Muria Mr D Marahare
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED	DISMISSED
PAGES	1-7

JUDGMENT OF THE COURT

[1] As a result of the growing risk of over-fishing beche-de-mer in Solomon Islands, the Minister of Fisheries and Marine Resources amended the Fisheries Regulations in 2000 by adding a new regulation 20 giving the Minister authority to regulate dealing in beche-de-mer "to ensure sustainable harvesting and prevent over-exploitation of the resource."

[2] In 2009 the Minister, acting under that authority, added regulation 13A:

"13A. A person who catches and retains, sells, exposes for sale, exports or is in possession for export, any beche-de-mer commits an offence and is liable on conviction to a fine not exceeding $100,000.00 or to imprisonment for a term not exceeding four months or to both."

[3] Regulation 13A came into effect on 7 May 2009 and is still in force but it appears that the two appellants and other fishermen on Pelau and Luaniua in the Lord Howe Islands (Ontong Java) continued harvesting beche-de-mer. When this came to the attention of the Attorney General, he wrote to the appellants on 16 August 2012 requesting them to bring the harvested beche-de-mer to Honiara. They did so and voluntarily surrendered 35,553.9 kgs. It was seized by the police with the Ministry of Fisheries.

[4] Section 49(1) of the Fisheries Act, 1998, allows the Minister or, in a case such as the present, the Director to compound any such offence, "by accepting on behalf of the Government from such person a sum of money not exceeding the maximum fine specified for that offence." The Minister decided to offer to compound this offence and each of the appellants paid $100,000. By section 49(6) it is a defence to any proceeding for an offence against the Act or any regulation to prove that the offence has been compounded; in effect it protects them from prosecution.

[5] The Ministry then advertised overseas for expressions of interest in buying the seized beche-de-mer. A buyer was found but the appellants claim that it was sold at a price substantially below the commercial value. They filed a claim in the High Court on 30 September 2013 for, in summary:

1. A finding that the second and third claimants were at all material times the lawful owners of the beche-de-mer exported by the Ministry to Hong Kong on or about 14 of October 2012.

2. A finding that at the time of the export, the export value was $51,206,118.00 and that the Ministry was only entitled to deduct 10% export duty and the balance was due and owing by the defendants to the claimants.

3. A finding that all the defendants by unlawful means conspired to cause economic harm to the claimants when the value of the beche-de-mer was under-declared as $15,654,729 to Customs and Excise at the time of export.

4. A finding that the defendants by deceit caused the claimants to suffer financial losses or in the alternative the defendants converted to their own use the value of the claimants' beche-de-mer being $46,085,506.20.

5. An order that the defendants pay the claimants that amount as compensation.

[6] The claim went on to seek exemplary and punitive damages, pecuniary damages, interest and costs on an indemnity basis.

[7] The defendants each filed an application to strike out the claim on the grounds that it was frivolous and vexatious and disclosed no reasonable cause of action. On 20 January 2014, the learned judge struck out the claim on both those grounds.

[8] This appeal is against that finding. The grounds of appeal are lengthy and can be summarised:

The learned judge erred:

1. By relying on the Declaration in the Preamble to the Constitution as a basis for rejecting the appellants' claims of ownership guaranteed and protected by sections 3 and 8 of the Constitution.

2. By finding that the appellants' claim of ownership was based on the fact of harvesting the beche-de-mer contrary to the appellants' claim of ownership as stated in ground 1.

3. By holding that the appellants admitted that they acted unlawfully when the ban under regulation 13A was being challenged in a separate High Court action, that the regulation is subject to section 52 (1) of the Fisheries Act and that there was an agreement between the appellants and the Ministry that the latter was to export the beche-de-mer, withhold export duty and release the balance to the appellants as the owners.

4. By not distinguishing the cases the judge referred to from the present case in that the agreement was to export the beche-de-mer on behalf of the appellants under section 52 (1) and that the appellants claim the proceeds.

5. By not distinguishing the case of Knight v Attorney General [2005] SBHC 6 from the present case.

[9] Rules 9.75 and 9.76 of the Solomon Islands Courts (Civil Procedure) Rules 2007 provide:

"9.75 - If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious; or

(b) no reasonable cause of action is disclosed; or

(c) the proceedings are an abuse of the process of the court;

the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.

9.76 -The court may receive evidence on the hearing of an application for an order under rule 9.75."

[10] Despite the verbose and wide ranging claim, the learned judge, in a well presented judgment, decided the application on two major aspects of the claimant's case. He set them out in the following passages. (Note; the present appellants were the original claimants and the respondents to the application to strike, the subject of this appeal. We shall refer to them hereafter as the claimants).

"It is clear to me," the judge explained, "that the remedies sought in this case are premised on a claim of ownership of the beche-de-mer by the claimants.

Unfortunately, I do not agree that the claimants are, or were at any time, the owners of the beche-de-mer in the light of paragraph (b) of the Declaration in the Preamble to the Constitution. The Preamble provides:-

'We the people of Solomon Islands, ...

DECLARE that;

...

(b) the natural resources of our country are vested in the people and government of Solomon Islands.'

The effect of the Declaration is that the natural resources of Solomon Islands, including the beche-de-mer, are owned by the people and government of Solomon Islands corporately and not individually. In other words, the beche-de-mer is not owned by the claimants and their communities individually. They are owned by the people and government of Solomon Islands although the claimants and their communities, being part of the people of Solomon Islands, are entitled to harvest them as long as it is lawful for them to do so.

Hence, as the claimants' claim of ownership is based on the fact that they were the ones who harvested the beche-de-mer, they did so in contravention of the law and no proprietary interest or right in the beche-de-mer can pass to them. The ownership still remains with the people and government of Solomon Islands. That settles the issue of ownership.

However, the fundamental issue I am asked by the first applicant to decide on this application is not so much about the ownership of the beche-de-mer but whether this court should lend its aid to the claimants who have admitted harvesting the beche-de-mer in contravention of regulation 13A.

On that issue, it is clear that the court cannot lend its aid to the claimants. The following authorities show that it would not be proper for the court to do so."

[11] The judge then refers to the cases of In re arbitration between Mahmoud and Ispahani[1921] 2KB 716; George v Greater Adelaide Land Development Co Ltd [1929] 43CLR 91 and Knight v Attorney General [2005] SBHC 6 and concluded:

"Applying these principles of law to the present case, it is clear that this court cannot entertain the claim which is founded on illegal acts by the respondents and the communities they represent. I am satisfied this claim is frivolous and vexatious and discloses no reasonable cause of action."

He then struck out the claim with costs.

[12] The first of the two principal aspects of the claimants' case upon which the learned judge based his decision was the claim to ownership of the beche-de-mer and the second was the inability of the court to entertain a case in which the action is founded upon an illegal act.

[13] The application before him was to strike out the claim under rule 9.75 on grounds 1 and 2 namely that it disclosed no cause of action and was frivolous and vexatious; presumably on the basis of the lack of a cause of action. The court will not strike out a claim except in the clearest of cases. Where there is an arguable point at issue, the case should be allowed to proceed to trial and it is not part of the judge's decision when determining such an application to determine the chances of success.

[14] The whole claim was effectively founded on the claimant's assertion of customary ownership of the marine resources of the area from which these were harvested. The judge based his finding solely on the words of Declaration (b) of the Preamble to the Constitution and concluded, in the passage set out above, that the claimants and their communities may harvest the beche-de-mer but that right arises only from being part of the people of Solomon Islands. They have no ownership of the resource.

[15] We cannot accept that conclusion. As has been stated in numerous cases, the Preamble of the Constitution is a statement of national aspiration but, if it is to have juridical force, it must be enacted into the laws by the enacting provisions of the Constitution or of specific provisions in other statutes. Until that happens it remains as guidance only.

[16] Although some statutes have enacted provisions relating to ownership of natural resources (e.g. see section 2 Mines and Minerals Act), the Fisheries Act 1998 is silent on the issue although it does acknowledge the existence of customary fishing rights in section 12.

[17] The judge described the claim of ownership as being "based on the fact that they were the ones who harvested the beche-de-mer". That is only partly correct. The claim was that they had harvested them because they were the customary owners and therefore had the right to gather them. The judge then concluded, "...they [harvested them] in contravention of the law and no proprietary interest or right in the beche-de-mer can pass to them. The ownership still remains with the people and government of Solomon Islands."

[18] That decision, with respect, ignores the fundamental basis of the claimants' case that, if they are the owners, they have the lawful right to harvest the beche-de-mer.

[19] The judge then moved on to consider the "fundamental issue" of "whether this court should lend it aid to the claimants who have admitted harvesting the beche-de-mer in contravention of regulation 13A." The authorities he cited were ample authority for the principle stated since the seventeenth century that "No court will lend its aid to a man who founds his action upon an immoral or illegal act" or as later expressed "Anything done in contravention of the provisions of [any written law] cannot be made the subject matter of an action".

[20] His conclusion, as stated in the last paragraph of the passage set out in paragraphs [10] and [11] above was that the court "could not entertain this claim which is founded on illegal acts by the claimants and the communities they represent."

[21] There can be no quarrel with the relevance and correctness of the principle he cites. The difficulty in the present case is that his conclusion as to illegality was based on his rejection of the claimed right of ownership. If the claimants could establish ownership under custom, the court needed to determine if that could make the harvesting of the beche-de-mer lawful.

[22] The question this Court needs to answer is, had the learned judge reached a different conclusion about the effect of the preamble on the issue of ownership, could it have placed a different complexion on the issue of illegality? The answer to that is plainly, No.

[23] The starting point is the undisputed breach of regulation 13A. Whilst the Act recognises customary fishing rights, the exercise of those rights must be subject to the laws of the country. No one is above the law and where customary rights are recognised by the law, they are also subject to it and it is no part of the claimants' case that they are not. It cannot be denied that the harvesting of beche-de-mer is subject to control of the government by legislation. Regulation 13A was clearly made in an attempt to prevent overexploitation of the resource.

[24] There is no dispute that the beche-de-mer in the present case was harvested in contravention of the restriction on commercial fishing imposed by the 2009 regulation and the admission by the claimants of the breach of the regulation is a tacit admission of illegality. We do not see this as a denial of any customary rights; simply an attempt to preserve their continuing efficacy. The existence of the claimants' customary fishing rights and possible ownership does not provide any answer to the breach of the regulation.

[25] Put another way, even if they are customary owners of the resource, their use of it is subject to the law. The foundation for their claim for the return of the proceeds of sale required a finding that they had not breached the regulation. The court was correct to decline to consider a claim totally based on the claimant's illegal act and was correct to strike it out.

[26] The appeal is dismissed with costs to the respondents.

Before leaving this case, it is necessary to refer to one further matter.

During the hearing of this appeal, reference was made to the requirement, in section 49(4) of the Act, to use a prescribed form. The Act appears not to contain such a form and so the Court requested counsel for the second respondent to assist. He was unable to find the form but produced a number of other documents relating to the seizure of the beche-de-mer. They were not in the appeal papers and it is not apparent whether they had been before the judge in the court below.

The following day, without leave, counsel for the appellants filed further written submissions on those documents.

The sole reason for the judge's refusal to entertain this claim was the claimants' breach of regulation 13A. That was the decision this Court has upheld. No event subsequent to that breach of the law by the claimants can change that overriding reason for the Judge's decision.

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Justice Edwin P. Goldsbrough (P)
President

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Justice Glen Williams (JA)
Member

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Justice Sir Gordon Ward (JA)
Member