Reef Pacific Trading Ltd v Kama [1998] SBHC 71; HCSI-CC 56 of 1996 (3 February 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 56 of 1996

REEF PACIFIC TRADING LIMITED & OTHERS

v

THOMAS KAMA

High Court of Solomon Islands
(LUNGOLE-AWICH, J)
Civil Case No. 56 of 1996

Read: 3 February 1998

J Meiners on behalf of the plaintiffs
Sullivan for the Defendant

ORDER OF RECUSAL

(LUNGOLE-AWICH, J): Hearing submissions was concluded on 15.4.1996. In the course of writing judgment I realized that I needed to peruse some of the related concluded case files. There have been up to 10 (ten) cases involving Reef Pacific Trading Limited and Meiners. For example, about the issue whether the costs claimed or part of them were not simply a question of taxation before the Registrar, I needed to peruse Civil Appeal Case No.1 of 1994, also High Court Civil Case No.246 of 1992. For the meaning of “non-existent client” for purposes of deciding costs, in my view, required perusal of the several other concluded case files. It also occurred to me that the issue of non existent client might be a way of repeating issues already raised in the ten or so other concluded cases in which the plaintiffs in this case were parties. The question of the case being vexatious would arise. The earlier case files of Reef Pacific were presented to the Commission of Inquiry into Corruption which was holding its proceedings during the period that included the period this case was heard. It was my view that I would wait until the Commission would release the files. I did not wish it to appear that the Court was hurrying up the Commission or in any way interfering with the work of the Commission. I understand now from a letter of the Secretary to the Commission dated 22.1.1998, addressed to the Registrar of the High Court, that he will only release the files on the advice of Attorney General, because the Commission is answerable to the Prime Minister. He may well be right if the Commission did not give direction as to the return of the case files to the High Court. I have mentioned it here for the purpose of showing that up to now I have not been able to peruse the relevant related case files.

Apart from my being unable to peruse the related case files, difficulties were occasioned as the direct result of appointing or giving power to a Commission of Inquiry to inquire into affairs of Reef Pacific Trading Limited, one of the parties in this case, at the same time as this case was being dealt with by Court. One would have thought that was unnecessarily inviting constitutional difficulty. Soon after I concluded hearing submissions in the case, and when I was writing judgment, I was subpoenaed, to be a witness before the Commission, to testify and I testified about matters in my former office as Registrar of the High Court. It became apparent to me that some of the things I had to testify about could be relevant in determining this case. I decided to wait and read the records of the proceedings of the Commission and its final report if and when the report was released. I would then decide whether it would be proper for me to deliver judgment in this case. Releasing the report was of course a matter of prerogative of the Executive arm of Government. The usual expected course of events would be for the Executive to conclude its administrative action before a matter is brought to court, unless of course, the very action of the Executive is the matter to be challenged in court. The report was finally released and forwarded to the High Court in October 1997 when I was away on leave. It must be noted that I was not in a position to ask for the release of the report; it would have been improper for me to ask for action which was within the prerogative of the Executive, unless the exercise of the prerogative has been challenged in court proceeding.

I have now read the report. It is my view, arising from my reading the report, that it will not be proper for me to deliver judgment in this case. A judgment that I would deliver would be viewed as a judgment of a witness before the Commission of Inquiry, answering or replying the report of the Commission. I therefore rescue myself and order that this case file, High Court Civil Case No.56 of 1996, together with this note containing the order to rescue myself, be placed before the Chief Justice for his consideration as to whether he may ask another judge or acting judge to retry the case. Costs so far would be costs in the cause, but subject to the decision of the judge who will retry the case reconsidering the whole question of costs in totality.

Read in Court and
Dated this 3rd day of February 1998
At the High Court
Honiara

Sam Lungole-Awich
Judge