Paia v Abe [1993] SBHC 57; HCSI-CC 30 of 1993 (29 March 1993)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.30 of 1993

PAIA & OTHERS

-v-

C.C. ABE & ANOR

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 30 of 1993

Hearing: 22nd March 1993
Judgment: 29th March 1993

A.H. Nori for Plaintiffs
J. Moti for First Defendant
P. Afeau for Attorney General

PALMER J: An originating summons seeking certain declarations in this court was filed on the 3rd of February 1993, by the plaintiffs.

The declarations sought are:

(1) That the suspension of the Plaintiffs by the First Defendant (Christopher Abe) from their offices as Directors of the Central Bank of Solomon Islands is ultra vires and therefore void and of no effect.

(2) In alternative to declaration 1 sought herein, that the Minister acted unreasonably and unfairly in suspending the Plaintiffs from their offices as Directors of the Central Bank of Solomon Islands.

(3) That the costs of this application be paid by the First Defendant personally.

In support of that application an affidavit was filed n the 4th of February 1993 by one of the plaintiffs, Mr Warren Paia. That affidavit sets out succinctly the chain of events beginning in early January of 1993 with a letter demanding initially the resignation of the Directors of Central Bank of Solomon Islands but then ending with a letter of suspension made against all the Directors effective as from the 29th of January 1993 at 4.01 p.m.

The originating summons names the Attorney General as the Second Defendant.

On the 8th of March 1993 a summons was filed by the First Defendant (Mr Christopher Abe) seeking an order to have the Originating Summons and all subsequent proceedings to be set aside. The grounds are two fold:

(1) That the First Defendant being a Minister of the Crown, and exercising his powers in that capacity, cannot be sued in his personal name.

(2) That the First Defendant being a Minister of the crown, and exercising his powers in that capacity, cannot be personally liable for the costs of the Plaintiffs’ application in the Originating Summons.

The submissions of the First Defendant have been conveniently set out in writing by Counsel for the First Defendant, Mr Moti.

The application is based squarely on the provisions of Order 69 of the High Court (Civil Procedure) Rules, 1964. Order 69 Rule 1 reads:

“Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court shall think fit.”

There are two types of non-compliances recognised judicially in the construction of Rule 1. Mr. Moti has aptly described these at page 2 of his submissions.

The first type refers to a non-compliance which renders the proceedings a nullity and in the second type it is a non-compliance which merely renders the proceedings irregular.

The case of Re Pritchard (deceased) [1963] 1 All E.R. 873, was cited in support of the First Defendants submission, as the authoritative case on which the submission of the Plaintiff was based on. The English equivalent to our Order 69 is Order 70.

The relevant passage is to be found in page 883 in the judgment of Lord Justice Upjohn. He identified three classes of proceedings in which a non-compliance can render the proceedings a nullity so that they can be set aside ex debito justitiae. They are:

“(i) Proceedings which ought to have been served but have never come to the notice of the defendant at all....

(ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings,

(iii) Proceedings which appear to be duly issued, but fail to comply with a statutory requirement.”

The application of the First Defendant is based on the third proposition.

The argument of the First Defendant in essence is that there has been a non-compliance ‘with any rule of practice for the time being in force’.

The rule of practice is that a Minister is sued by his title rather than his individual name. A list of cases was submitted in support of this proposition. They are conveniently set out in page 10 paragraph 19 of Mr Moti’s written submission.

On top of that Mr Moti submits and this is not disputed that the Crown Proceedings Act [Cap.7] covers the proceedings in this case.

The relevant section is section 15(1). It states:

“Except where otherwise expressly provided by some other written law, civil proceedings by or against the Crown instituted under the provisions of this Ordinance shall be instituted by or against the Attorney General.”

His submission is that by suing the First Defendant in his individual name, there has been a breach of section 15(1) of the Crown Proceedings act. Such a breach he argues fall squarely in proposition 3 of Lord Justice Upjohn’s test in Re Pritchard (decead)’s case and accordingly should be regarded as a fundamental defect sufficient to render the proceedings a nullity, and entitling the First Defendant to have the proceedings set aside ex debito justitiae.

It needs to be pointed out here however that the Attorney General has been included as the Second Defendant. And on that basis the Plaintiffs have in actual fact complied with the requirements of section 15(1) of the Crown Proceedings Act. The submission therefore in respect of that Act do not apply. There has been no statutory breach, and therefore no fundamental defect in my opinion as regarding proposition 3 of Lord Upjohn’s test in Re Pritchard (deceased)’s case.

The fundamental question raised however still remains. Whether there is any legal justification for including the First Defendant as a party to this action?

Counsel for the First Defendant says that there is none. He argues that the First Defendant has no legal relationship at all with the Plaintiffs. His relationship only arose in his official capacity as the Minister of the Crown responsible for the Central Bank of Solomon Islands. The link is provided by the Central Bank of Solomon Islands Act.

There is no dispute that the First Defendant was appointed as “Minister for Finance and Economic Planning” under Gazette Notice No.33 of 1989, and also that the responsibility for the Central Bank of Solomon Islands came under his portfolio.

Learned Counsel for the Plaintiffs on the other hand, Mr Nori submits that section 15(1) of the Crown Proceedings Act is not prohibitive. Rather it is directional. In the first instance the Attorney General can and should be named but it does not prevent the Plaintiffs from including any other person other than the Attorney General.

He then referred to two cases, in this jurisdiction Fugui & Another -v- Solmac Construction Company Ltd and
Others 1982 SILR 100 and the case of Jamakana-v-Attorney General and Another 1983 SILR 127, as supporting his submission that in the Solomon Islands jurisdiction a Minister of the Crown can be sued in his individual name.

It is trite law that servants of the Crown are liable in their personal capacity for any torts they commit. (see Raleigh-y-Goshen 1897 1 Ch.73 at page 77. Also see comments of Professor Glanville Williams in his book Crown Proceedings (London, Stevens & Sons Ltd, 1948) at page 85.)

Is the inclusion of the First Defendant justifiable?

With due respect to the submissions of Mr Nori I conclude that it is not.

The first declaration sought by the Plaintiffs seeks in essence a determination of the scope of ministerial powers of the Minister of Finance and Economic Planning. Professor Glanville Williams had some pertinent comments to make in such situations. At page 86 he states:

“If no tort is in question, and the sole purpose of the action is to determine the scope of governmental powers, the action must be brought against the Attorney General.” (Underlinings mine)

The claim of the Plaintiffs is that the First Defendant had acted ultra vires when he suspended the Plaintiffs. But it is important to note that that exercise of power by the First Defendant was in his ministerial capacity. That he as the Minister of Finance and Economic Planning had the power to suspend the Plaintiffs.

When deciding that issue the court is obliged to consider the scope of his power as Minister of Finance and Economic Planning.

This court is not being asked to consider whether the First Defendant in his personal capacity had wronged the Plaintiffs; that he had done an unlawful act towards the plaintiffs in his personal capacity!

This is where the words of Professor Glanville Williams at page 86 - 87 and quoted by Mr Moti in his submissions are relevant. I quote:

“It is a clear principle that when a person has a claim against the state, he cannot get a declaration of his rights against the state by suing an official in the latters own name, for such an action is necessarily against the official in his private capacity. The state, not being a party to the action, would not be bound by any declaration that the court made, consequently the court will not make it.”(Underlinings mine).

The key words are “his rights”; “own name” and “private capacity”. If a person seeks a declaration for his rights against the state but uses the individual name of the Government Official then that is done against that official in his private capacity.

The application to this case is simply this, that where the plaintiffs are seeking a declaration of their rights against the First Defendant in his ministerial capacity or in the purported exercise of his ministerial powers as provided for under the Central Bank of Solomon Islands Act, then the correct person to be sued is the Crown. The plaintiffs in the first declaration sought are not seeking a declaration of their rights against Christopher Abe in his private capacity. They are seeking a declaration of their rights against Christopher Abe as the Minister of Finance and Economic Planning; whether he had the powers which he had exercised as the Minister of Finance & Economic Planning. The correct person to be sued therefore is the Attorney General.

This is what Mr Moti was referring to in his submissions as the Statutory nexus or link between the Plaintiffs and the First Defendant.

There is no legal relationship between Mr. Christopher Abe in his private capacity and these Plaintiffs. There is no wrong being alleged against Mr Abe in his private capacity by these Plaintiffs in the first declaration sought; that he had for instance, acted unlawfully towards them.

This distinction was also brought out in the case of Hulton and Others -v- Secretary of State for War [1926] 43 T.L.R.106 at page 107, where Justice Tomlin stated and I quote:

“...that in a case where an official was sued as an individual for a wrongful act it was no defence to say that the wrongful act was done by him as an Officer of the Crown.”

What is meant in that statement is simply that where a wrongful Act has been alleged against an individual then an action would lie against him in his personal capacity and he cannot hide behind the cloak of the Crown; that he was exercising a statutory power, for instance. In other words a claim against an official in his individual name is done so in his private capacity.

I now turn to the alternative declaration sought.

The claim sought is that the Minister acted unreasonably and unfairly in suspending the Plaintiffs. In this ground it is acknowledged that it is the Ministers power that is being questioned. What is being challenged is the reasonableness and the fairness in the exercise of the Minister’s powers. There is no question here that we are dealing with Ministerial power. The proper persona designata therefore is the Crown.

There is no allegation of any wrongful act by the First Defendant in his personal or private capacity. There is no claim for any breach of legal duty or unlawful act of the First Defendant, in his personal capacity.

3rd Ground

The declaration sought under ground 3 of the Originating Summons that costs of the application be paid by the First Defendant personally can be shortly disposed of.

There is no basis for it. With due respects, to allow it to remain in the originating summons would be putting it in the words of the First Defendant’s Counsel, ‘unnecessarily punitive, oppressive, vindictive, and otherwise an abuse of the Court’s process.’

Section 19 of the crown proceedings Act does provide the court with a discretion as to costs but that cannot be justification for inclusion of that claim where I have determined that the proper persona designata is the Crown.

The case of Fugui & Another -v- Solmac Construction Company Limited and others (1982) SILR 100 can be distinguished on the basis that the Minister was joined as the Third Respondent on an application by the Attorney General (who was the second Respondent in that case) on a Third Party Notice application under Order 18 of the High Court (Civil Procedure) Rules, 1964. The main reason appears to be that the Minister had acted contrary to the advice of the Attorney General. At page 109 last paragraph I quote the words in the affidavit of the lawyer from the Attorney General’s Division:

“6. when the meeting was almost over and lots of matters unresolved, the Minister of Lands, Energy and Natural Resources informed the meeting that he would issue a licence as a Minister and I immediately advised him that he had no power under the Act to issue a licence”.

The case of Jamakana -v- Attorney General and Another (1983) SILR 127 was also mentioned. That case can be distinguished on the grounds that it involved an illegal act of the then Acting Minister of Police and Justice which resulted in a breach of the entrenched constitutional right to personal liberty of the applicant under section 5 of the Constitution. The applicant, Jamakana had a valid claim against the Acting Minister of Police & Justice in his private capacity. The Acting Minister of Police & Justice had acted unlawfully towards Jamakana.

I quote the words of Chief Justice Daly at page 139:

“I also consider that the second Respondent must accept personal liability in this case. He personally initiated the direction in circumstances where the basis for it was non-existent in law and inadequate in fact even had he possessed a legal basis for acting. No attempt was made to apply any standard of fairness to the Applicant by giving him a right of reply or by passing the complaints as to an authority less personally involved than the Second Respondent was. Where a person endeavours fairly to apply a law which he believes to be relevant and yet makes a genuine mistake which results in contravention of the rights of another, these must always be a strong case for absolving that individual from personal liability on the basis that it is not appropriate to make a personal order of compensation against him for the purpose of “securing the enforcement of the constitution” within the terms of 18(2). What matters is the genuine effort to abide by the constitution and the law. In this case there is no indication whatsoever that the Second Respondent made any genuine effort to abide by the constitution and the Law.”

The originating process in that case did specify the particular breach that was being alleged against the Acting Minister of Police & Justice. I quote the declaration sought contained in the ‘Statement Accompanying the Application for Leave’ filed on the 5th of May 1993;

“The Applicant seeks a declaration that the direction made by the Second Respondent, the then Acting Minister of Police & Justice, dated the 24th June 1982 to the effect that the Applicant be prohibited from leaving Solomon Islands was in breach of sections 5 and 14 of the Constitution.”

That was a specific claim against the Acting Minister of Police & Justice for an unlawful act, for a wrong done against Jamakana. And that is different to the declarations sought in this case.

The Court’s Orders/accordingly are as follows.

1. The application to set aside is only granted in part. That is the name of the First Defendant is to be deleted. The Originating Summons therefore has to be amended and I will allow 2 days to file an amended Originating Summons.

2. The claim for costs against the First Defendant personally is also to be deleted. An appropriately worded claim for costs is to be substituted.

3. The costs of the First Defendant in this application are to be paid by the plaintiffs.

Directions:

1. Affidavits to be filed by the Attorney General in 7 days.

2. Any reply to be made 7 days thereafter and case to be listed for hearing on a date soon thereafter by the Court.

(A. R. Palmer)
JUDGE