Vasivapada Trading Company Ltd v Registrar [1996] SBHC 97; HCSI-CC 49 of 1996 (2 August 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 49 of 1996

VASIVAPADA TRADING CO. LTD

-v-

REGISTRAR AND SHERIFF OF THE HIGH COURT
AND ATTORNEY GENERAL

Before: Muri
Hearingaring: 13 June 1996
Ruling: 2 August 1996

Counsel: A. Radclyffe for the Plaintiff
P. Afeau for the Defendants

MURIA b>

This is an application by the first defendanendant to be deleted as a party to these proceedings. He has been sued as first defendant citing him as the Registrar and Sheriff of the High Court.

Background circumstances

The plaintiff is the defendant in Civil Case No. 100 of 1995 ("CC100/95") against whom a judgement had been obtained on 28 April 1995 in the sum of $98,140.06 together with interest and costs. The plaintiff in CC100/95 is Sasape Marina Limited who on 25 May 1995 caused a writ of fieri facias to be filed in the High Court. Execution was subsequently levied against the property of the plaintiff. The Court appointed bailiff then carried out the execution process and seized the plaintiffs vessel, the "M.V. Thomas E" which the Bailiff later sold by tender and obtained the sum of $300,000.00. Out of that sum the bailiff paid Sasape Marina Limited's solicitor the sum of $111,844.50 being the judgement debt, together with interest and costs. The bailiff then paid plaintiff $102,749-36. The bailiff retained the sum of $80,499.14 which the plaintiff now says that the bailiff wrongfully retained. The plaintiff by his writ of Summons claims, among other things, that sum of $80,499.14.

The bailiff, Mr. Lawrence Teibi, was appointed on 3 February 1992 by the then Registrar of High Court who was also the Chief Magistrate. As Registrar he also assumed the title Sheriff of the High Court.

The Sheriff's Position

I think it is necessary to consider, the position of the Sheriff in this jurisdiction proceeding further with this matter.

As correctly pointed out by Mr. Radclyffe, by virtue of Legal Notice No. 29 of 1962, the Registrar of the High Court was appointed Sheriff for Solomon Islands pursuant to the powers conferred by section 20(1) of the Western Pacific (Courts) Order in Council, 1961. It must be noted, however, that the Order of 1961 had been revoked in 1975 by section 15 of the Solomon Islands Courts Order 1975, Legal Notice No. 55 of 1975 which was in turn revoked in 1978 by the Solomon Islands Independence Order 1978, Legal Notice No. 43 of 1978.

Apart from the Order of 1961, subsequent legislations did nothing to alter the appointment of the Registrar as Sheriff. Consequently, it has become the practice ever since to regard the Registrar of the High Court as the Sheriff.

As to the position of Deputy Sheriff, the then High Court Commissioner appointed the District Commissioner in each District to be Deputy Sheriff for that district. See Legal Notice No. 30 of 1962. Again this appointment was made pursuant to section 20(1) of the Western Pacific (Courts) Order in Council, 1961. Like that of the appointment of the Registrar as Sheriff, the position of Deputy Sheriffs have not been affected by the subsequent legislation.

It would appear to be that despite the revocation of the Order of 1961 under which the Registrar and District Commissioners were appointed to be Sheriff and Deputy Sheriffs respectively, the practice of the Registrar performing the functions of the Sheriff has been accepted. Likewise, the District Commissioners (later, the District Magistrates) have also been carrying out the functions of the Deputy Sheriffs.

It will be noted that section 15 of the Solomon Islands Courts Order, 1975 which revoked the Order of 1961 did not make any provision saving the continued operation of the
Order of 1961 or that order having effect on the coming into operation of the Order of 1975.On the other hand the Solomon Islands Independence Order, 1978 having revoked the existing Orders, one of which is the Solomon Islands Courts Order 1975, did save the operation of laws made or having effect under those existing Orders. This is clearly stated in section -5 of the Order of 1978 as follows:

"5. (1) The revocation of the existing Orders shall be without prejudice to the continued operation of any existing laws made, or having effect as if they had been made, under any of those Orders; and the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Solomon Islands Act 1978 and this Order"

In the light of the provisions of law as it stood in 1978, the only conclusion that I am able to come to is that the law conferring power to appoint Registrar of High Court as Sheriff had ceased to take effect as part of the law of Solomon islands, nevertheless the appointment having taken place before the repeal of the enactment remained unaffected and preserved. Confirmation of this position can be found in section 23 of the Interpretation and General Provisions Act 1978 which is in the following terms:

"23(1) The repeal of an Act does not -

(b) affect the previous operation of the Act or anything duly done or suffered under it;

. . . . . . . . . . .

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act"

.. . . . . . . . . . .

This position of the law on the effect of repealed legislation had also been considered in the Hong Kong case of Director of Public Works and Another -v- Ho Po Sang and Others [1961] UKPC 22; [1961] 3 WLR 39. In that case the second appellant (the lessee) applied on 9 April 1950 for renewal of his lease and a memorandum of agreement was signed by the Director of Public Works and by the lessee on 7 June 1955. It was agreed that the lessee was to erect new buildings on the site after the existing buildings were demolished. But before the lessee was to demolish the buildings, he had to have vacant possession. Sections 3A-E of the Landlord and Tenant Ordinance empowered the Director to give rebuilding certificate which would entitle the lessee to call upon those in occupation to quit. Sections 3 A-E were repealed on 9 April 1957. Steps, however, have already been taken before 9 April 1957 to obtained rebuilding certificate and served notices to that effect upon the tenants. It was sometime in early October 1957 (but after the repeal of sections 3 A-E) that the Governor of Hong Kong directed the issuance of a rebuilding certificate. The Director consequently issued a rebuilding certificate to the lessee on 12 October 1957. One of the contentions raised was that after the repeal of sections 3 A-E the Director had no legal authority to issue a rebuilding certificate. The Privy Council held that when sections 3 A-E were repealed on 9 April 1957, the lessee had no right to vacant possession under those section and that there was no validity in the purported rebuilding certificate although the preliminary steps taken before the repeal of the provisions were not affected. Their Lordships, after distinguishing the case of Heston and Isleworth Urban District Council -v- Grout [1897] UKLawRpCh 111; [1897] 2 Ch. 306, said this page 54:

"The validity of 'anything duly done' before April 9, 1957, was not affected by the repeal. Accordingly the procedural steps which had been taken as a preliminary to obtaining a decision of the Governor were not invalidated: they were however, rendered abortive, for the repeal and the hope or possibility of being given a rebuilding certificate. The lessee enjoyed no right which was kept alive. He did not have any right even of a contingent nature."

Accordingly the situation we now have is that Registrar of High Court had, under the Order of 1961, been designated as Sheriff also prior to the repeal of that legislation. That designation had not been effected by any subsequent legislation and as such must be accepted as remaining valid even to the present day unless otherwise altered.

Section 15 of the Crown Proceedings Act.

I now turn to the submission that section 15 of the Crown Proceedings Act applies in this case. It is contended by Mr. Afeau that the case here concerns suing the crown for an alleged tortious act of a crown servant and as such the proper party is the Attorney General, not the Registrar and Sheriff of the High Court. Counsel submits, therefore, that section 15 of the Act applies. In addition, Counsel also relies on section 4(5) of the Act.
Mr. Radclyffe, on the other hand, raises no contention that section 15 does not apply. Counsel submits, however, that section 15 does not prevent the Registrar and Sheriff being made a party to the case. Thus, he says, the Attorney General can be made a party and the first defendant can be added.

The issue here is whether the action should be brought against the Attorney General only rather than joining the Registrar and Sheriff as well. In other words, as contented by Mr. Afeau, the Registrar and Sheriff should be deleted as a party to the action. I turn first to the provisions of the law raised in the course of argument. Section 4(5) is relied upon by the defendants but I feel it is necessary that I set out the provisions of section 4 in full. That section provides as follows:

"4(1) Subject to the provisions of this Ordinance, the Crown shall be subject to all those liabilities in tort 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 servants or agent;

(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 at common law to the ownership, occupation, possession or control of property:

Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate.

(2) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.

(3) Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law or by any written law, and that officer commits any tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.

(4) Any written law which negatives or limits the amount of the liability of any Government department or officer of the Crown in respect of any tort committed by that department or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown had been proceedings against that department or officer.

(5) No proceedings shall lie against the Crown by virtue of this section in respect

of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process."

and section 15 provides as follows:

"15(1) 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.

(2) No proceedings instituted in accordance with this Part by or against the Attorney General shall abate or be affected by any change in the person holding the office of Attorney General."

The proceedings with which we are now concerned is one brought in tort alleging vicarious liability on the part of the second defendant based on alleged tortious acts of the first defendant. In this regard section 4 of the Act is important as it sets out the provisions dealing with the extent of the liability of the Crown in tort for tortious acts of its servants or for breach of duties. The plaintiff claiming against the Crown will, of course, have to establish that a tort has been committed by the person who is a servant or agent of the Crown. I do not intend to venture into these issues at this stage as the occasion for that has not yet arisen. The consideration of the defendants' argument pursuant to subsection (5) of section 4 will also have to wait for that occasion.

The issue fails to be decided in these interlocutory proceedings is whether the first defendant should be sued as well as the Attorney General. This now turns on the consideration of section 15 of the Act.

Mr. Afeau's argument is that, the action is a civil proceeding against the Crown and under section 15(1) it must be brought against the Attorney General. The words used in that provisions are:

"civil proceedings by or against the Crown shall be instituted by or against the Attorney General."

There can be no argument that the plaintiffs action in this case is an action against the Crown. But it seeks to cite the first defendant as a party in case since, as counsel for the plaintiff puts it, "it is open to the Government to deny responsibility." But whether the Government denies liability or not is, in my view, not a reason for instituting civil proceedings against a servant or an agent of the Crown who is said to be carrying out his duties as required of him under his terms of employment. If the Crown employee is sued in person and denies the claim, the plaintiff would still have to prove his claim and so also, if the Government is sued and denies liability. The liability of the Government in this case, no doubt will depend on the relationship between the Sheriff and the Bailiff and actions taken by them in respect of the goods of the plaintiff. But I shall say no more on that for now.

By way of comparison, the English practice of appointing Sheriffs is different to the practice that we have in Solomon Islands. In England the high sheriff is nominated and then appointed by the Queen in Council annually. Sheriffs of the Counties on the other hand are also appointed annually but by the city or town council at each annual meeting. The Sheriff appoints and employ bailiffs and sheriffs officers for the purposes of summoning juries, collecting fines and executing writs and processes. He is also liable for wrongful acts of his bailiffs or officers in the course of their employment. See Wright -v- Child [1866] UKLawRpExch 42; (1866) LR 1 Ex Ch. 358.

In Solomon Islands there is no separate office of the Sheriff as such at the present. The Registrar of High Court, by virtue of LN. 29 of 1962, had been designated to be the Sheriff of Solomon Islands as well. He is employed by the Government and as a servant of Crown he carries out both his Registrar and Sheriff functions. Whether he in turn employed bailiffs and in particular, Mr. Lawrence Teibi in this case, is a matter to be decided later. But I cannot help concluding that the Sheriff, at present, in Solomon Islands is a servant of the Crown.

The argument that because in the past in road traffic cases the Government was sued as well as individuals, this case must be seen on the same footing cannot be accepted. The point raised in the present case had not been taken up in those previous cases. A matter of practice in those previous cases is not necessarily a legal precedent to be adopted in subsequent cases of this nature.

That being the case, I would have no hesitation in concluding - that section 15 of the Crown Proceedings Act applies if the plaintiff is to continue its claim against the Sheriff and the proper party to cite as the defendant is the Attorney General. I therefore order that Writ of Summons issued in this matter against the Registrar and Sheriff of the High Court together with the service thereof on him be set aside.

Costs in the cause.

Order accordingly.