Solgreen Enterprises Ltd v Attorney General [2018] SBCA 19; SICOA-CAC 26 of 2016 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Solgreen Enterprises Limited v Attorney General
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from Judgement of The High Court of Solomon Islands(Mwanesalua DCJ)
Court File Number(s):	CA 26 of 2016
Parties:	Solgreen Enterprises Limited v Attorney General
Hearing date(s):	8 October 2016
Place of delivery:
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	L. Ramo for the Appellant S. Banuve and A. Poa for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Fisheries Act, Crown Proceedings Act, Fisheries Act 1998
Cases cited:	Civil Case No. 245 of 2006 Solgreen Enterprises Ltd v Fisheries Department, Osiabu v Attorney General
ExTempore/Reserved:
Allowed/Dismissed:	Appeal is dismissed
Pages:	1-12

JUDGMENT OF THE COURT

I. Introduction

1. This is an appeal filed 5 October 2016 against a judgment of the High Court dated 5 October 2016 dismissing a claim for negligence and damage against the Respondents (the Crown).

II Background

1. How it started

2. The Appellants, Solgreen Enterprise Limited (“Solgreen”) is a locally owned company incorporated under the laws of Solomon Islands.
3. On 21 May 2004, Solgreen wrote to the Fisheries requesting that the Fisheries consider reducing the level of fees from USD10, 000 per vessel per year to USD $5,000 per vessel per year for its ten (10) fishing vessels. Solgreen gave the following reasons for the reduction of fees:
   • (a) Solgreen is a local company and locally owned;
   • (b) Solgreen had share based facilities and infrastructure; and
   • (c) Solgreen landed all its fish catch ashore then packed and exported the fish by plane.
4. The Fisheries responded to Solgreen and agreed to reduce the fees payable per vessel per year. However, this had to be done by way of a Development Agreement.
5. On 26 May 2004, following various consultations between Solgreen and the Fisheries, Solgreen said, they signed in good faith the Development Agreement with the Fisheries.
6. Under the Development Agreement, the Fisheries agreed as follows:
   • (a) The level of licence fees to be paid per year would be USD5,000;
   • (b) The payment would be made on instalment basis; and
   • (c) The licence would cover the period from January to December 2004.
7. After the signing of the Development Agreement, Solgreen in good faith paid for the reduced fishing licences as agreed.
8. The Fisheries did not issue the licences despite the payments by Solgreen.
9. The Fisheries advised Solgreen that it could start fishing and that the respective licences for the vessels would be sent later.
10. By letter dated 15 November 2004, the Minister for Fisheries revoked the Development Agreement to the extent that the Permanent Secretary of the Fisheries lacked the capacity to sign the Agreement.
11. Solgreen decided to file proceedings in the High Court and in its amended claim filed on 15 December 2011 in Civil Case No. 245 of 2006, Solgreen inter alia sought damages for negligence against the Fisheries.

2. Pleadings

12. This is the basis of the Appellant’s claim in the High Court:
    1. The loss and damages claimed totalled SI$402,218.28. The acts of negligence particularised were:
       • (a) A failure to properly advise the plaintiff on the applicable licence fees;
       • (b) A failure to render proper advice in relation to the legality of the Development Agreement;
       • (c) A failure to issue fishing licences to the plaintiff even though USD$5,000 was paid per vessel in accordance with the Development Agreement;
       • (d) Authorizing the plaintiff to carry out fishing when it knew or ought to have known that it was illegal in the absence of licences on board the vessel;
       • (e) A failure to issue fishing licence to 5 boats after US$725,000 was duly paid.
13. The Respondents denied any acts of negligence detailed in the claim and denied the loss and damages. They denied and put the Appellants to strict proof of any negligence in their duty to the Appellants as alleged in the claim.
14. They further put the Appellants to strict proof of the various allegations of unlawful actions or authorising the Appellants’ vessels to fish without proper licence. In their further amended defence, the Respondents pleaded the compounding of offences in accordance with section 49 of the Fisheries Act. The Appellant expressed its willingness that the offence under section 16 (7) (a) of the Fisheries Act be dealt with by way of compounding (as one of the employees of the Appellants was arrested by the police authorities for fishing without a licence).
15. This aspect of the matter before the court below had been settled between the parties. The court below proceeded to hear of the claim.
16. The matter went to trial on 15 and 16 June 2012.
17. On 5 September 2016, the trial judge delivered his judgment dismissing the claim by Solgreen (Appellants).

III Judgement appealed against

18. The trial judge stated he could not find in the pleadings or in the statement of the case any are facts which give rise to the duty of care owed by the defendant to the claimant (Solgreen). Below is the relevant passage of his judgement:
    1. “Refutation of any suggestion of a duty of care owed are the two Agreements to settle executed by the claimants in relation to breaches of the Fisheries Act arising out of the absence of licences to fish. They, by implication, accept the rescission of any supposed right in the Secretary of the Department to vary the licence fees by Agreement with the claimant. For the Development Agreement was executed by the Secretary of the Department of Fisheries’ behalf, neither by the Director who has power under Section 16, for instance, to issue a licence nor by the Minister who is the responsible person able to prescribe (and presumably vary) fees. For those later Agreements acknowledge the breaches compounded and settled by the terms of the documents. Hence nowhere are there pleaded facts constituting a breach of any duty of care to be afforded the claimant after the companies acceptance and acknowledgement of the commission of offences under the Act or facts giving rise to the duty must be pleaded in the case, not the duty itself as has happened here, yet (the duty and) the negligence pleaded predates the acts by the claimant by which it accepted the compounding by the Minister in an endeavor to settle the differences afforded by the claimant’s earlier actions found in to be in breach of the fishing regulations.

Nowhere do the facts raise a duty in the Minister to afford this claimant particular dispensation from the terms of the Act, nor is there evidence to show any approach to the Minister with that purpose in mind. For the Act determines the powers and duties given individuals named for positions and responsibilities under the terms of the Act. In any event the casual connection between the loss suffered by the claimant and the defendant is absent, for the loss on the evidence of the claimant was attributable to factors going to the claimant’s inability to finance the continued fishing without in effect, finance from the Government through reduction and deferment of fishing licence fees. Again there is no evidence to show the Government was obligated to finance the defendant in these.

2. The Fisheries Department has no obligation to proffer legal advice and whilst the issue relates to the legality of the document executed by the Secretary of the Department and whilst the plaintiff may rely on the presumption regularity (in that the Permanent Secretary had authority to bind the Minister with power to act pursuant to S 25 of the Fisheries Act 1993 and fix fees) once it was resolved by the Minister on the 15 November 2004, and the Development Agreement was declared null and void, the fact remained that fishing was taking place without proper licence for the presumption of regularity was refuted, as a matter of law”
19. On 5 October 2016, Solgreen filed a Notice of Appeal, appealing the judgment of the trial judge.
20. The circumstances surrounding the date of the delivery of the judgment or the date an extempore decision was given or not are part of the grounds of this appeal in this case. We will deal with them in due course.
21. Whatever the factual situation, it is part of the record that the reasons for the judgment in the court below was published on 16 July 2013. That date seemed to be that of the extempore or oral decision made in relation to this case. If that date 16 July 2013) was the correct date, it means that is the date the decision of the court below was delivered. The reasons of such a decision were published later on. In the present case the reasons were published on 5 September 2016 (more than 3 years after).
22. The notice of appeal of the losing party (i.e. Solgreen) starts to run from the date the decision was given, that is 16 July 2013.
23. It is part of good practice for counsel to file a notice of appeal at the date of the decision or just after the decision was given in order to protect the interest of the clients and to reserve the rights of counsel to add or further the grounds of appeal once the reasons of the decision were published.
24. In this case, taken the circumstances, leave is required. We take note that the Notice of Appeal was filed separately but not part of the Appeal; we take note also that this appeal if filed on 5 October 2016, was late in time. The Respondents counsel appear not to take issue with it. We proceed as if leave has been properly sought although this should not be the practice.

IV. Appeal grounds

25. Solgreen appealed the judgment on the following grounds:
    • (1) That the learned judge erred in fact in holding that the hearing took place on 16 July 2013, whereas the actual trial took place on 13 and 16 July 2012.
    • (2) That the learned judge erred in holding that an extempore judgment was made on 16 July 2016.
    • (3) That the learned judge erred in holding that the evidence of Kazwo Nagasawa supporting the allegation by the Appellant that the Respondent acted unlawfully by authorising and advising the Appellant that it would start fishing and the licences for each vessel would be delivered on board each vessel was hearsay evidence, whereas there was documentary evidence to that effect.
    • (4) That the Learned Judge erred in holding that the proper course to take against individuals vested with public authority is by way of judicial neither and not to subject them to claims of negligence, whereas sections 4(1) (b) of the Crown Proceedings Act does permit the Crown to be subject to all tortious liability, in respect of any breach of duty by the servants and agents.
    • (5) That the Learned Judge erred in holding that the Development Agreement entered into between the Appellant and the Permanent Secretary of the Ministry of Fisheries on 26 May 2004 was illegal because the Permanent Secretary did not have the power to enter into the Agreements, whereas the Appellant entered the agreement in good faith without notice of any such restrictions on the contractual capacity of the Permanent Secretary of the Ministry of Fisheries.

V Discussion on appeal

26. We begin with grounds 1 and 2 as they are linked.
27. We note that both the Appellant and Respondent counsel concede that errors of date of judgments or date of extempore was possible. Those errors of dates are not going to determine substantively this appeal. The submission or suggestion that the learned trial Judge could have made certain errors in dealing with this matter is baseless. An error of date could be ascertained from the court file record. That error of date is not evidence that there was no extempore judgement issued by the trial judge. A decision and reasons of such a decision were made and they are now before this court. Any ultimate error is a matter for the Appellant’s counsel to show through evidence that had an adverse effect and connect with those errors of dates. We say grounds 1 and 2 are not appealable grounds. They have no merit and they are dismissed.
28. On ground 3 of the appeal, the Appellant challenges the findings of the Trial Judge that rejected the evidence of Kazuo Nagasawa that it was hearsay but the Appellant said there was documentary evidence tendered by way of sworn statement of Kazuo Nagasawa filed on 19 June 2009 that provides or goes to show that was authorisation by the Respondent for the Appellant to commence fishing whilst the fishing licence are processed. The fishing licence fees for five (5) fishing vessels were paid but the Respondent had neglected and or refused to issue the relevant fishing licence to the Appellant.
29. The Respondent contends that this ground of appeal has no merit if one refers specifically to what the court below was referring to. The Respondent says that the court’s finding was not just due to hearsay but the court had heard also other evidence which makes clear Mr Nagasawa was aware of the risks he was taking fishing without licence. The Respondent further submits that part of the evidence he was alluding to is summarized in the ruling under the further amended defence of the Defendant (Respondent). The critical evidence the court was alluding to was an agreement to settle reached between the claimant and the government dated 18 November 2004 based on a breach by the Claimant (Appellant) of section 16 (1) (a) of the Fisheries Act 1998 on 15 November 2004 within the EEZ of Solomon Islands. The Respondent submits further that other evidence which the court below bore in mind included:
    • (1). Neither in the pleadings nor in the statement of case are there facts which gave rise to a duty of care owed by the Defendant to the Claimant. The most obvious refutation of any suggestion of duty of care are the two Agreements to settle executed by the Claimants in relation to the breaches of the Fisheries Act arising out of the absence of license to fish For these later Agreements acknowledged the breaches compounded and settled by the terms of the documents. Hence nowhere are there pleaded facts constituting a breach of duty of care to be afforded to the claimant after the company’s acceptance and acknowledgement of the commission of offences under the Act.
    • (2). Nowhere do the facts raise a duty in the Minister to afford this Claimant particular dispensation from the terms of the Act.
30. We agree with the submissions of the Respondent on this ground of appeal and we dismiss it as having no merit.
31. As to ground 4 of the appeal, it is alleged that the Judge erred when he considered that the proper course to take against individuals vested with public authority was by way of judicial review and not to subject them to claims of negligence.
32. We note the comments made by the Judge in the judgment of the court below. We take them as remarks said by the Judge in his judgment that were not essential in the decision in this case [Obiter dicta] the case was decided on the basis of the summons and sworn statements and evidence before the court at the time. It was a contested hearing before the judge. The court below is not stating that actions for negligence are not available against the Crown. Both counsel for the Appellant and Respondent recognise and agree that this is available under the Crown Proceedings Act and the relevant passage of the Crown Proceedings Act follows:

Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in force to which, if it were a private person of full age and capacity, it would be subject

(a) in respect of torts committed by its servant or agents;
(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and
(c) in respect of any breach of the duties attaching by common law to the ownership; occupation, possession or control of property.

33. Despite the Obiter Dictum comments, the decision of the court below on this issue appears to have been dealt with on the basis of negligence on the basis of the Crown under the Crown Proceedings Act.
34. Ground 4 of the appeal is dismissed as having no merit.
35. Ground 5 of the appeal is that the Appellant executed the agreement with the Permanent Secretary of the Ministry of Fisheries in good faith without notice of the contractual capacity of the said Permanent Secretary. The Appellant referred to Osiabu –v- Attorney General [2007] SBHC 106; SCSI-CC 425 of 2006 (30 August 2007). The Appellant insists that it had partly performed its obligations under the said agreement before it was rescinded by the Respondent.
36. The Respondent submitted that this ground of appeal is advanced as a cogent ground without reference to other critical findings of the court that the claimant (Appellant) later acknowledged liability by entering into a separate agreement to settle dated 18 November 2004.
37. The Respondent referred to the following passage of the judgment under appeal that it is correct and will dispose of this ground of appeal:
    • “that purported reduction of licence fees in the Development Agreement had no basis in law in the absence of a power of delegation in the Act, a power purportedly delegated to the Secretary of the Department who entered into this deed. No such power is pleaded or shown. In fact the “injury” is to the thousands of Her Majesty’s [Solomon Islands] subjects – whose expectation for licence fees in accordance with those determined by the Ministry is thwarted by the supposed Development Agreement made beyond authority,”
38. We note the criminal dimension of the offending against section 16 (1) (a) and the compounding of offences under section 49 of the Fisheries Act.
39. Such Development Agreement is not properly done within the provisions of the Act. It is illegal ab initio from its inception. The facts in Osiabu v Attorney General [2007] case concerned breach of financial regulations. It is distinguished.
40. We agree with the submission of the Respondent on this ground of appeal also. It is dismissed.

VI Result

40. The Appellant fails to establish negligence on the part of the Crown. The appeal has no prospect of success, for the reasons, and we therefore refuse to grant leave. Dismissed in it’s entirely. We award costs to the Respondents, such costs will be agreed or assessed on the standard basis.

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Goldsbrough P
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Ward JA
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Lunabek JA