Mill Ling Chan v Premier of Malaita Province [1998] SBHC 125; HCSI-CC 159 of 1998 (19 October 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.159 of 1998

MILL LING CHAN

-v-

THE PREMIER OF MALAITA PROVINCE

High Court of Solomon Islands
(F. O. KABUI J)
Civil Case No. 159 of 1998

Hearing: 13th October, 1998
Judgment: 19th October, 1998

Mr. Solosaia for the Plaintiff
No appearance for the Defendant

JUDGMENT

Kabui J - This is an application by the Plaintiff for the hearing of her originating summons in the absence of the Defendant pursuant to Order 13, rule 10 of the High Court (Civil Procedure) Rules, 1964. Rule 10 above is as follows:-

Where a defendant or respondent to an originating summons to which an appearance is required to be entered fails to appear within the time limited, the plaintiff or applicant may apply to the Court for an appointment for the hearing of such summons, and upon a certificate that no appearance has been entered, the Court shall appoint a time for the hearing of such summons, upon such conditions (if any) as they or he shall think fit

This is the procedure to be applied where the Defendant does not enter appearance to an originating summons after service of the summons has been effected. The Plaintiff’s application seeks a Court order in the following terms:-

1. Judgment be entered for the plaintiff in default of Appearance or filing of Defence.

2. The said judgment be for declarations that:

(a) The Malaita Province Areas of reserved business order of 1995, which was made pursuant to section 21 of the Malaita Province Business License ordinance, 1992 contravenes sections 14 and 15 of the constitution, therefore is unconstitutional.

(b) The disapproval and subsequent cancellation of the plaintiff’s Retail Business License by Malaita Province executive on or about 15th of June 1998 is illegal.

(c) The Retail Business License obtained by the plaintiff on the 23rd of April 1998 is valid, thus should be allowed to carry on business in Auki without any interference from the Malaita Provincial Executive.

3. And, in the alternative, the plaintiff has a right to claim damages for any loss suffered as consequence of the Malaita Province Executive decision made on or about the 15th of June 1998.

4. The matter be listed for assessment of damages.

5. Costs.

The Facts

The Plaintiff is Mill Ling Chan, Trading as M.L. Chan Company Limited, a Company incorporated in Solomon Islands. Mill Ling Chan is the Managing Director and Company Secretary of her Company. She is a business woman of Chinese origin but now a citizen of Solomon Islands. She has a Solomon Islands Passport No. 013306. In her Passport she is known as Mrs. Mill Ling Chan but in this action she is simply known as Mill Ling Chan. She was operating a wholesale/retail business in Auki between 1989 to 1993. She then returned to Honiara in 1994. Towards the end of 1997, she began negotiating with Mr. Benjamin Fa’amauri for the purchase of a building in the town of Auki. The building was purchased from Mr. Benjamin Fa’amauri for the sum of $450,000. In the transfer document of title, the property is identified as Parcel No. 171-001-12.

She had also incurred costs for renovation work on the building. She then applied for a business licence and was granted one. A business licence certificate was duly issued upon payment of $1,200 fee on 23rd April, 1998. By letter dated 10th July, 1998, she was informed by Mr. Tuita on behalf of the Provincial Secretary that her application was unsuccessful on the ground that retailing business was reserved for Malaita people only excluding outsiders. The business licence fee of $1,200 was also returned. The decision to reject the Plaintiff’s application for a business licence was made by the Malaita Province Executive on 15th June, 1998. It was in effect a revocation of the business licence certificate previously issued on 23rd April. 1998. The Plaintiff is not now, as a result, able to sell her goods in Auki purchased from wholesalers in Honiara.

The Originating Summons

The Plaintiff filed an Originating Summons against the Defendant on 11th September, 1998. The summons is in the following terms:-

LET THE PREMIER Of Malaita Province, c/- Post Office Auki Malaita Province, within 14 days from the date of service of this originating summons of him, enter or cause an appearance to be entered on your behalf to an application made by Mill Ling Chan of P.O. Box 40, Auki, Malaita Province, seeking the following declaration and orders:

1. Declaration that:-

(a) the Malaita Province Areas of Reserved Business order of 1995, was made pursuat to section 21 of the Malaita Province Business Licence Ordinance 1992 contravenes section 14 and 15 of the constitution, therefore is unconstitutional.

(b) the disapproval and subsequent cancellation of the plaintiffs Retail Business Licence by Malaita Province Executive on or about 15 June 1998 is illegal.

(c) that the Retail Business Licence obtained by the plaintiff on the 23rd of April 1998 is Valid thus should be allowed to carry on business in Auki without any interference from the Malaita Provincial Executives.

2. In the alternative the plaintiff has a right to claim damages for any loss, suffered as consequence of the Malaita Provincial Executive’s decision made on the 15th of June 1998.

The summons was duly served upon the Malaita Premier, Mr. David Oeta by Police Constable PC708 on 14th September, 1998 at 11.30 a.m. This Certificate of Service is marked “MLA” to the affidavit sworn by the Plaintiff on 6th October, 1998 and filed the same day. The time limit for appearance to be entered for the Defendant was 14 days from the date of service, that is, from the 14th September, 1998. That time limit of 14 days would have expired on 27th September, 1998. There is no evidence that the Defendant had entered an appearance as required by the originating summons. The effect of this was that the summons was heard in the absence of the Defendant.

Application for the Business Licence by the Plaintiff

Section 4 of the Malaita Province Business Licence Ordinance 1992 requires that no person shall operate any business in the Province unless a licence has been granted by the Executive of the Malaita Province. Sections 5 and 6 set out the procedure for applying for a business licence in the Province. The application form is also prescribed in Schedule 1 to the said Ordinance. It is the Provincial Treasurer who puts before the Executive for consideration any application for a business licence in the Province. The Executive then grants a business licence or otherwise in accordance with the relevant laws and policies of the Province. Once the Executive has approved the application for a business licence, the Provincial Treasurer or an authorised officer then issues the licence upon the payment of the prescribed fee. Section 7 of the said Ordinance states that the Executive has absolute discretion to refuse to grant a business licence. In her affidavit sworn on 11th September, 1998 and filed the same day, the Plaintiff deposed that she did apply for a business licence sometime prior to 23rd April, 1998 but did not state the date of the application. The transfer document of title to the building purchased from Benjamin Fa’amauri was dated 21st April, 1998 and the business licence was issued on 23rd April, 1998, two days later. It may well be that the Plaintiff had applied on an earlier date for the business licence. It however remains a mystery that the Plaintiff was issued a business licence on 23rd April, 1998 without the knowledge of the Malaita Province Executive. According to Mr. Solosaia, counsel for the Plaintiff, the Plaintiff wrote to the Premier on 4th June, 1998 only after she had heard informally that her business licence had been cancelled. It would seem that the Plaintiff’s letter of application dated 4th June, 1998 was the one rejected by the Executive on 15th June, 1998 and later communicated to her by letter of 10th July, 1998. In terms of the clear provisions of the said Ordinance, I do not think the decision of the Executive on 15th June 1998 can be attacked in any way. It would appear that the business licence of 23rd April 1998 issued to the Plaintiff was done so without the authority of the Executive. There is no evidence to suggest that it had been granted by the Executive. On the balance of probability it had not been.

The Ultra Vires Argument

Mr. Solosaia still however argues that the Malaita Province Areas of Reserved Business Order 1995 is ultra vires section 21 of the said Ordinance. The following are the relevant parts of the said Order of 1995:-

1. The purpose of this Order is to encourage development of local business initiatives and to ensure that the culture and customs of Malaita Province are protected by restricting investment in certain areas to Malaitans.

2. New investment in Malaita Province in the sectors and activities set out in the Schedule to this Order is reserved exclusively to Malaitans and their Solomon Island spouses. A Malaitan includes a Solomon Island National with one Malaitan parent and a Solomon Island National who was born in and lives in Malaita Province.

SCHEDULE

1. Wholesale/Retail business (except wholesale/retail of polished rice).

2. Taxi Service

3. Road Haulage

4. Bus Service

5. Internal Cargo Shipping

6. Internal Passenger Shipping

7. Stevedoring

8. Domestic Marketing of all Marine Products

9. Domestic Marketing of Sawn Timber

10. Do screen Printing

11. Sign writing

12. Shipping Agencies

Also, the following is section 21 of the said Ordinance:-

The Executive may make such Orders and Regulations as appear to them to be necessary or expedient in carrying out this Ordinance and these may include:

(i). setting Licence fees and matters relating to fees;

(ii). prescribing or amending categories of Businesses;

(iii). prescribing the form and contents of any application or authorisation.

Mr. Solosaia’s point is simply this. Section 21 of the said Ordinance only permits prescription or amendment of categories of businesses specified in schedule 2 to the said Ordinance for the purpose of licencing businesses in the Province. It has nothing to do with reserving of business areas for Malaitans to the exclusion of others. I think Mr. Solosaia is correct. I do agree with his argument on this point because the said Order was purported to have been made pursuant to section 21 of the said Ordinance. This being the position, the said Order can be relegated to the status of simply “policy” of the Province. It would not have any legal effect apart from the fact that it may not have been gazetted also. However, this is not the end of the matter. Section 6(ii) of the said Ordinance does give the Executive the power not to grant a licence if the particular business in question does not comply with laws and policies of the Province. Section 6(ii) is as follows:-

The Executive shall not grant a Licence unless it is satisfied that the Business complies with all the relevant laws and policies of the Province.

It is no doubt the case that the Plaintiff’s application for a business licence was rejected by the Executive by reason of its policy contained in the said Order of 1995. I do not therefore think that the Executive’s decision to reject the Plaintiff’s application for a business licence based on its policy contained in the said Order of 1995 can be questioned as being beyond its powers under section 6(ii) of the said Ordinance .

The Plaintiff’s case under the Constitution

However, the main pillar of the Plaintiff’s case is that the Executive’s decision rejecting the Plaintiff’s application for a business licence on the grounds contained in the said Order of 1995 is a contravention of her constitutional rights under sections 14 and 15 in Chapter II of the Constitution. This Chapter is about the protection of fundamental rights and freedoms of the individual. The Plaintiff alleges that her rights of movement under section 14 of the Constitution is being questioned by the action of the Executive. Also, she is being discriminated against because of her race, contrary to section 15 of the Constitution. The Plaintiff in effect is saying that the policy contained in the said Order of 1995 is but discriminatory and the Executive should not have based its decision on a policy that contravenes sections 14 and 15 of the Constitution. In my view, the Plaintiff does have the right to come to Court under section 17 of the Constitution. She can do that under section 18 of the Constitution. The procedure for an application for redress under section 18 of the Constitution is set out in Order 61A of the High Court (Civil Procedure) Rules 1964 (see L. N. No.9 of 1982 p.42). This procedure is akin to the procedure for prerogative writs under Order 61 with modification. Under Order 61A, leave of a judge in Chambers is a pre-requisite before an application by notice of motion can be set down for hearing. This is a special procedure designed for the enforcement of constitutional rights under Chapter II of the Constitution. Apparently, the Plaintiff has not done this in this case. She has come to the Court seeking declarations by way of originating summons under Order 58 of the High Court (Civil Procedure) Rules 1964. Does the Court then have the power to order that the originating summons be treated as an application for redress for breach of constitutional rights under Chapter II of the Constitution? Order 30 rule 12 of the High Court (Civil Procedure) Rules 1964 does give the Court general power to correct any defect or error in any proceedings. Rule 12 is in the following terms:-

The Court may at any time, and on such terms as to costs or otherwise as the Court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.

This is a useful tool of practice for the attainment of justice provided its application does not result in injustice to the other side (see Cropper v Smith [1884] UKLawRpCh 60; (1884) 26 Ch. D. 693). It must however be stated in the context of this case that this application by the Plaintiff is for judgment in default of appearance. The Defendant had failed to enter appearance to the Plaintiff’s Originating Summons. The time for the Court to form an opinion under rule 12 above as to the correct procedure has now gone. However, even if the Court was able to detect a defect in the procedure would rule 12 be the appropriate rule to apply? Rule 12 would seem to apply to a defect or error in “proceedings” and not a defect or error in procedure. I do not think rule 12 would apply in this case. Even if it does, it would cause injustice to the Defendant. That is to say, it would not still have been possible to continue the hearing of the Plaintiff’s application simply by amending the originating Summons and then and there grant leave under Order 61A. As a matter of fact, the originating summons and the supporting affidavits are not in the form required by Order 61A for leave to be granted. There would have also been the problem of serving the Defendant with the documents required by Order 61A, plus the need for probably an adjournment. Any attempt by the Court to force an amendment to comply with the requirements of Order 61A would have resulted in the Court conducting the case for the parties.

There is also Order 69 of the High Court (Civil Procedure) Rules 1964 which says that non-compliance with the rules of procedure or any rule of practice does not necessarily result in proceedings being void unless the Court says so but such proceedings may be set aside as being irregular or amended or otherwise dealt with as the Court thinks fit. Rule 1 of Order 69 is as follows:-

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 otherwise dealt with in such manner and upon such terms as the Court shall think fit.

The equivalent of Order 69, rule 1 above being Order 70, rule 1 of the Rules of the Supreme Court of the United Kingdom, was considered by the Chancery Division in In re Pintchard dec. [1963] Ch. 502. In that case, the Plaintiff had incorrectly filed an originating summons in the local district registry instead of being filed in the Central Office in London. The Court held that the originating summons was a nullity because it had not complied with Order 54, rule 48 being the proper procedure for originating summons of the kind sought by the Plaintiff. The Court pointed out that such non-compliance was a fundamental failure to comply with section 225 of the Supreme Court Judicature (Consolidation) Act, 1925 on the matter of issue of civil proceedings. In my view, Order 61A, in the same way is a consequence of section 18(6) of the Constitution. This subsection states:-

Rules of Court making provision with respect to the practice and procedure of the High Court in relation to the jurisdiction conferred on it by or under this section (including rules with respect to the time within which any application or reference shall or may be made or brought) may be made by the person or authority for the time being having power to make rules of Court with respect to the practice and procedure of that Court generally.

The non-compliance of Order 61A is obviously a fundamental failure to comply with section 18(6) of the Constitution and therefore the Plaintiff’s originating summons must necessarily be void. However, the Plaintiff, unlike the case of In re Pritchard dec’d above, is still at liberty to seek redress for breach of her constitutional rights by proceeding correctly under Order 61A of the High Court (Civil Procedure) Rules 1964. There is still time to do so. The Plaintiff’s application is refused.

No Order as to costs

F. O. Kabui
Judge