Kama v Attorney General [1995] SBHC 87; HC-CC 080 of 1995 (21 April 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 80 of 1995

THOMAS TONAVI KAMA

v.

THE ATTORNEY GENERAL
(REPRESENTING MAGISTRATE D. SENEVIRTNE AND ALL
MAGISTRATES IN SOLOMON ISLANDS)
And
WOLFGANG MEINERS

(Palmer J.)

Hearing: 12/4/95
Judgment: 21/4/95

PALMER J: By notice filed pursuant to Order 61 Rule 2 of the High Court (Civil Procedure) Rules, 1964, the Applicant applies for leave to apply for Orders of Certiorari and Prohibition in the terms set out in the Originating Summons filed on the 17 March, 1995.

In the Statement filed pursuant to Order 61 Rule 2, at page 2, the orders sought to be quashed were the charges issued on or about the 10th of December, 1993 by the Magistrate’s Court. Order 61 Rule 3 however, imposes a time limit of six months within which leave should have been applied for.

There is evidence in the various documents filed in support of the Application which showed that the Applicant was aware of the issuance of that order by the presiding Magistrate on or about the same time.

A question raised by the Court in the hearing was when should the period of commencement of the time limit be calculated from. Mr Kama argues that the time limit should not be calculated from the date of the issue of the said charges on or about the 10th of December, 1993. He pointed out that Rule 3 of Order 61 referred to ‘other proceeding’ and ‘the date of the proceeding’, which meant he says that the issuance of the charges and the subsequent prosecution by the prosecutor of the case, should be regarded as part and parcel of the same proceeding initiated in December of 1993. The matter was therefore a continuing proceeding before the Magistrate’s Court until March of this year, 1995.

I am satisfied this submission is correct, and that accordingly, the application has been made within the time period allowed under the Rules. But even if that is not the case, the Court does have power under Order 64 Rule 5 ‘... to enlarge or abridge the time appointed by these Rules ... upon such terms as the justice of the case may require’.

There is evidence in the affidavit in support of Thomas Kama filed on the 12th of April, 1995, at paragraphs 4 to 8 that the Applicant did raise with the Magistrate’s Court, the issues pertaining to the question of the validity of the charges that had been issued. No rulings however, were made by the Magistrate’s Court.

The matter then came before the Magistrate’s Court for trial until on the 8th of August, 1994, Mr Kama applied for an adjournment to enable him to file an application to the High Court for orders of certiorari. The application was denied by the learned Magistrate and so an appeal was lodged against the order of the Magistrate’s Court. By the time the appeal came before this Court, Mr Kama had decided to withdraw his appeal. The matter accordingly was returned to the Magistrate’s Court as the presiding Magistrate had left the jurisdiction of the country.

The matter then came before Mr R Koaru, Principal Magistrate, but an application was made for adjournment of the trial pending determination of an application before this Court for the above orders.

Having read the Notice filed on the 17th of March, 1995, pursuant to Order 61 Rule 2, the Statement also filed pursuant to that Order, the Originating Summons filed on the 17th of March 1995, and the affidavit in support of Mr Kama, filed on the 12th of April 1995, even if the time limit had expired, I am satisfied that an enlargement of time would have been appropriate in the circumstances of this case.

Leave to file an application for Orders of Certiorari and Prohibition are granted herewith.

The date and time for hearing of this application is to be fixed before the Honourable Chief Justice. The documents for service listed in paragraph 2(b) of the Notice is to be served not less than two clear days before the return date for the Notice of Motion.

The Respondents to file and serve Affidavits in Answer at any time prior to the hearing of the Notice of Motion.

Costs in the cause.

A.R. PALMER
JUDGE