Attorney General v Maui [2016] SBCA 4; SICOA CAC 24 of 2015 (22 April 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona PJ)
COURT FILE NUMBER:	Civil Appeal Case No. 24 of 2015 (On Appeal from High Court Civil Case No. 520 of 2015)
DATE OF HEARING:	12 April2016
DATE OF JUDGMENT:	22April 2016
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	Attorney-General - v - Solomon Maui (Trading As Mugaba Timbers) And Asia Pacific Investment Development Limited
ADVOCATES: Appellant: Respondent:	Mr. John Muria (Jnr) Mr. Gabriel Suri
KEY WORDS:	Crown Proceedings Act s 18(1).
EX TEMPORE/RESERVED:	JUDGMENT RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	1-7

JUDGMENT OF THE COURT

Background

1. Prior to registration the first respondent was a principal land owner of Naonecustomary land, West Rennell.The land is now registered and described as Parcel 298-005-1. The second respondent sub-leases that land.
2. The second respondent held a mining licence over that land. The second respondent’s position is that it legally felled trees pursuant to its mining licence, and sought permission from the Ministry of Forestry and Research to sell the logs. When such consent was not forthcoming, it transferred the logs to the first respondent. The first respondent maintains he sold the logs.
3. The position of the Ministry of Forestry and Research is that it became aware of the logging by the second respondent. The Commissioner considered the second respondent did not have the necessary permission under the Forest Resources and Timber Utilisation Act to log the land. The Commissioner also considered that the second respondent was not entitled to transfer the logs to the 1st respondent.As a consequence, under the powers invested in the Commissioner under the Act, the logs were seized and ultimately were advertised by the Commissioner for sale by public tender.

The proceedings in the Magistrates Court

4. Being aggrieved the respondents filed an appeal in the Magistrates Court. In that appeal there is a live dispute between the parties as to the legality of the seizure, but that is not a matter of relevance to this appeal.
5. When the respondents became aware of the public tender for the sale of the logs, they filed an ex parte application in the Magistrate’s Court seeking to restrain the appellant from selling the logs. The respondents named the Attorney General (representing the Commissioner of Forest). i.e. the Crown, as defendant. Part of the relief sought by the respondents was to injunct the Commissioner to prevent the sale of the logs by public tender.
6. The ex parte application was heard by magistrate Saramo on the 8 October. The appellant was not represented. The magistrate mentioned in his decision that staff tried to telephone the appellant’s chambers without success.
   

The appeal to the High Court

7. On appeal, the critical issue before Faukona J was whether s 18(1)Crown Procgs Act (CPA)(CPA) prohibited the grant of injunctions against the Crown. Even though s 19(1) (dthe Magistrates Cous Court Act granted power to magistrates to grant injunctionsthe Crown argued that s 18(1) of the CPA restriche magistrate or the High Court from issuing an injunction against the Crown.
8. The judge determined that s 18(1) CPAwas subservient to s 19(1) (d) of the Magistraous Court Act, and upheld the orders made by the magistrate. We confess we have some difficulty in understanding the learned Ju8217;sreasoning as to why s 18(1 did not apply. Doing oing the best we can, it seems eems to us that he considered the decisions of Quan v Minister of Finance and Treasury and Attorney-General v Chaudry support such a view.^[1]
9. After discussing those cases, he found:

23. In any event, there is no practical rationality to usher the operation of S.18. Anyone can have a prospectus guess. I think the answer lies in the obvention of revenue, finance and costs in which the Crown cannot be allowed to suffer the consequence of remedy which in lieu demeans Her Majesty’s Government of Solomon Islands (the Crown) in disdain.

24. So far, the nature of the orders does not prejudice the Claimant or accumulate any monetary liability. The concern order is merely an order granted to preserve the properties until 16th of October or other date when the appeal is finally heard by the Magistrates Court. It would appear that S.18, if not properly interpreted, will be used as a shield to prevent identifying what ought not to have been done, been done by the Crown. In other words, there has to be a measuring rod to ensure what the Crown does, does not breach the law. Hence, I could able to conclude that not all the reliefs are restrictive against the Crown. There are some which the Crown must prepare to accept so as to uphold the principle of just and convenient. If the orders sought in this application is granted, it is imminent the properties the subject of the appeal will be disposed of thus render the appeal at stake.

Decision

11. Mr Surifiled an applicationtostaythe appeal becausethe Registrar had failed to exerciseher discretioninrelationto security for costs.We refused the application inthe course of the hearing, ordered costs in the appealand said we would give brief reasons in our decision. Mr Suriargued that security for costs was a condition precedent to thehearing of an appeal pursuant to Rules 9 to 11 of the Court of Appeal Rules.
12. He accepted rule 11(3) is discretionary. There is a short response to the application. Security is not ordered against the Crown for the same reasons as the prohibition in s 18 CPA. The reason Mr Suri could not find any authority to support his proposition is because there is none in England or the Commonwealth that we are aware of. Simply put, even in the absence of specific provisions, the Crown is excused from giving security.
13. Turning to the substantive appeal we are satisfied that the learned Judge has misinterpreted the two authorities referred to and, more importantly, s 1wn Proceedings Act. SectiSection 18 states:

Nature of relief

18.—(1) In any civil proceedings by or against the Crown the court shall, subject to the provisionthis Act, have power to mako make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that—

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

(b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(2) The court shall not in any civil proceedings grant any injunction or make any order against any officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.

14. The section is clear on its face, and is not ambivalent in any way. It clearly prohibits the Court in any civil proceedings from making an injunction against the Crown, as the magistrate did here. The reason for this is succinctly stated in a leading text; Hogg,Liability of the Crown (2^nded, The Law Book Company) at page 26:

The principal reason why injunction, specific performance, discovery and mandamus were not available against the Crown was the refusal of the courts to attempt to coerce the Crown.

15. That does not mean, as the Judge suggested in the passage cited above, that the Crown can breach the law. The power to make declaratory orders as to the rights of the parties is clearly sufficient to ensure that this does not happen.
16. The cases relied on by the Judge do not assist the interpretation he applied. All Chaudry is authority for can be found in the headnote, which states:

(i) Notwithstanding that an Act provided a remedy to an inferior court for breach of provisions, the High Court had power to enforce obedience to the law as enacted by way of injunction wherever it was just and convenient to do so.

17. The other case cited by the Judge, Quan, is very much against the interpretation applied by the learned Judge. In that case the learned Chief Justice stated:

Until section 18(1) is declared unconstitutional it applies as prohibiting the issue of injunctory orders against the Crown. All that section 18(1) of the Crown Proceedings Act does isestrict the nature oure of relief which can be obtained against the Crown as they apply to the issue of injunctions and orders fecific performance and confine them to the issue of declaratory orders instead. The> There is no basis therefore to say that section 18(1) of the Crown Proceedings Act encroaches upon elimits thes the High Court’s “unlimited” original jurisdiction to hear and determine any civil proceedings unection 77(1) of the Constitution. (Our emphasis).

18. There has been no suggestion or ruling by the learned Judge that s 18 CPA is unconstitutional. The comments by the learned Chief Justice highlighted above (which we fully endorse as correct) is that s 18(1) restricts the nature of relief. It does seem to us that the Judge may have confused the question of “original jurisdiction” with relief. At [14] he stated:

In any course, by figurative assessment, the Claimant decided to come to this Court because of the significant important of S.18 of the Crown Proceedings Act. In no way that is a defective idea, acknowledging the fact that Courtinherent and unli unlimited original jurisdiction in granting injunctions, see S.77 of the the Constitution.

19. The judge relied on s77 of the Constitution to find he had “inherent and unlimited jurisdiction in granting injunctions, see s 77 of the Constitution”. While s 77 of the Constitution grants the High Court “original jurisdiction”, it certainly does not extend to unlimited rights to impose remedies. The remedies available to the High Court may be properly circumscribed by Parliament. (As they can with jurisdiction e.g. the specific prohibition on the High Court from deciding issues as to the ownership of customary land.) This they have done in s 18(1) CPA, preventnjunctivective relief being granted against the Crown. In so doing, the Solomon Islands aligns itself with virtually all Commonwealth countries. It is important for Judges of the High Court to understand that s 77 goes to diction, not to t to remedy.
20. We do ncept Mr Suri’s argument that this matter is saved by 18(2) CPA. He argued, as we unde understood it, that ss(2)does not protect officers of the Crown unless the financial interests of the Crown were threatened. He submitted here the injunction would have no financial impact on the Crown. In this submission he may have been referring to Paras 22, 23 and 24 of the decision of Faukona J. Paras 23 and 24 as set out above.
21. The submission is misconceived. It does not appear to have been a submission in the High Court. In any eventss(2) is drafted to cover the situation where an officer of the Crown is sued in his own name. If that occurred and under s18 (1) an injunction could not be issued against the Crown then it will not lie against an officer of the Crown.
22. As we noted earlier the appeal and the ex parte application in the Magistrate’s Court were issued against the Crown. The clear wording of s 18(1) prevented injunctive relief. So it could not lie against the Commissioner acting as an officer of the Crown.
23. For the sake of completeness we note that the Magistrate in his careful judgment did not mention s 18 CPA. We assume because this was not mentioned to him. We remind counsel, as officers of the Court, of their obligation to place before the Court all relevant legislation and authorities both for against their client’s interest. This is especially so with urgent ex parte applications.
24. In the course of the hearing we enquired of Mr Suri if any undertaking for damages had been given as required by Rule 78 of The Rules of Civil Procedure. He said he believed he had. He has since filed a letter saying he didn’t as his ex parte application did not seek injunctive relief and the Magistrate granted the injunction of his own volition. This is simply incorrect. Order B sought by the respondents in their application of the 8^th October 2015 clearly seeks injunctive relief. An undertaking should have been filed.
25. It follows that this appeal must be allowed. Accordingly, order (i) made by the Magistrate is struck out. There is no reason why the other orders made by the Magistrate should not remain in force, subject to the need to obtain an updated timetable order. Remaining orders remitted to the Magistrates Court for a determination on the merits.
26. There will be costs in the Court of Appeal, including costs on the misconceived application for a stay and the High Court to the appellant. There will be no order for costs in the Magistrates Court.
    

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Goldsbrough P

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Ward, JA

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Hansen JA

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^[1] Quan v Minister of Finance and Treasury [2005] SBHC 5; HCSI-CC151 of 2005 (17 April 2005).Attorney-General v Chaudry [1971] 3 All ER 938; [1971] 1 WLR 1614.