Avaiki Shipping Company Ltd v Attorney-General [2001] SBHC 3; HC-CC 248 of 2000 (24 January 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 248 of 2000

AVAIKI SHIPPING COMPANY LIMITED

v

ATTORNEY GENERAL,

CENTRAL BANK OF SOLOMON ISLANDS

AND MUGGAVA MUGGIKI INVESTMENT COMPANY LIMITED

High Court of Solomon Islands

Before: F.O. Kabui, J

Civil Case No. 248 of 2000

Hearing: 23^th Januar1

Judgment: 24^th January 2001

Mrs J. Gordon for the First Respondent

2^nd Respondent not present

3^rd Respondent not present

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(Kabui, J): This is an application by Notice of Motion filed on 6^th December 2000 by the 1st Respondent against Avaiki Shipping Company Limited. This was done in response to Avaiki Shipping Company Limited’s Originating Summons filed on 31^st October 2000 in which Avaiki Shipping Company Limited asked for a number of declarations. These two applications came before me on 12^th November 2000 when Counsel for Avaiki Shipping Company Limited, Mrs. Tongarutu, applied for adjournment because she had tooth ache. She also claimed that she had not been served with the Notice of hearing for this date. There being no objection from Mrs. Gordon, I adjourned the hearing for a date to be fixed by the Registrar of the High Court. In. the meantime, the 1^st Respondent filed another Notice of Motion on 15^th December 2000 in the same terms as the one filed on 6th December 2000 and had it served upon Avaiki Shipping Company Limited's Solicitor, Mrs. Tongarutu, on 9^th January 2001. There is a Certificate of Service to that effect filed on 16th January 2001. When the case came before me on 23^rd January 2001 for hearing, Avaiki Shipping Company Limited nor its Solicitor, Mrs. Tongarutu was in Court. I proceeded to hear the 1^st Respondent’s Notice of Motion in the absence of Avaiki Shipping Company Limited and its Solicitor, Mrs. Tongarutu, under Order 38, rule 6 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules).

The 1^st Respondent’s Notice of Motion

The 1^st Respondent’s Notice of Motion simply asks for an order that Avaiki Shipping Company Limited’s Originating Summons be struck out for non-compliance with Order 58 of the High Court Rules. Rules 1 and 2 of Order 58 of the High Court Rules are in these terms-

ass="Mso="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 1. &nbs; &nbbsp;&&nbp; Any person claiming to be interested under a deed, will, or other written ument appl inating summons for the deterdeterminatmination of any question of construction ion arising under the instrument, and for a declaration of the rights of the persons interested.

2.  p; &nsp; Any person claiming agal or equitable right in a case where the determination of the question whether he i he is entitled to the right depends upon a question of construction of any provision of a written law, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed.

3. …………………………….

4. …………………………….

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Mrs. Gordon’s argument was that the Originating Summons did not disclose a cause of action under Order 58 of the High Court Rules. She said the Originating Summons was misconceived in that there was no evidence to show that there was a deed or a will giving rights to Avaiki Shipping Company Limited and thus the need to declare such rights by construing a deed or a will. She said there was also no evidence of equitable rights to be considered. Apart from the words “a deed, will” in rule 1 of Order 58 of the High Court Rules, the words “or other written instrument” also follow immediately after the words “a deed, will” so that “a deed or will” are not the only instruments envisaged in Order 58 above. The words “or other written instrument” are in my view very general in scope but that such “other written instrument” must necessarily be capable of conferring rights of some sort to some persons having an interest in that written instrument for it to be of any legal value. This is the limitation. Attached to Mr. Tuhanuku’s affidavit filed on 31^st October 2000 in support of the Originating Summons were Exhibit “DT4” (A) and (B). DT4 (A) was a letter dated 23^rd October 2000 written by the Prime Minister, Mr. Sogavare to his Minister Joses Tahua, Minister responsible for Works, Transport and Communication which includes shipping policy etc. In this letter, the Prime Minister accepted that Avaiki Shipping Company Limited belonged to the people of Rennell and Bellona and being accountable to Rennell and Bellona Provincial Government was good reason enough for $1.5 million to be released to it. DT4 (B) was Permanent Secretary, Ministry of Finance's letter to his counter-part in the Ministry of Works, Transport and Communication advising his counter-part to raise the necessary payment voucher for $1.5 million for shipping purposes to the Rennell and Bellona Province. Both DT4 (A) and (B) are both written documents. The question is how do they connect with Avaiki Shipping Company Limited so as to create a legal interest that generates the right to seek declarations under Order 58 of the High Court Rules? I think the correct answer would largely depend upon the facts of each case. In this case, Avaiki Shipping Company Limited was no party to the discussion process that was going on between the Prime Minister and his Permanent Secretary and the Minister of Works, Transport and Communication and his Permanent Secretary. Avaiki Shipping Company Limited was to be the beneficiary in terms of receiving the $1.5 million. Things however could go wrong politically and it could miss out on the $1.5 million payment. It had no legal right to that money at that point in time. It could not sue for breach of contract. It could not sue for specific performance. It could not sue as a beneficiary because there was no trust in place in its favour. It was not a party to DT4 (A) and (B) and so it had no legal right to be recognised by way of declarations. Although DT4 (A) and (B) are indeed written documents, they are not documents creating any rights which can be claimed by Avaiki Shipping Company Limited under Order 58, rules 1 and 2 of the High Court Rules. They are political documents reflecting Government policy in shipping service to Provinces. This being the case, the Originating Summons filed by Avaiki Shipping Company Limited cannot be sustained under Order 58 of the High Court Rules and thus must be struck out with costs. The Application by the 1^st Respondent is therefore granted. This being the result, I would also discharge the interim order I made in favour of Avaiki Shipping Company Limited on 2^nd November 2000. In fact, it should automatically fall away. Nevertheless, I order accordingly as requested by Counsel for the 1^st Respondent, Mrs. Gordon.

F.O. Kabui

Judge