Ganifiri v Toito'ona [2004] SBHC 45; HC-CC 172 of 2003 (21 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 172 of 2003

JIMMY GANIFIRI

-v-

MAHLON TOITO’ONA, NELSON TOITO’ONA, REX KONOFILIA
AND AUSTRALIA AND NEW ZEALAND BANKING LIMITED

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J.).

Date of Hearing: 21^st May 2004
Date of Judgment: 21^st May 2004

K. Raddock for the Plaintiff.
No appearance for the Defendants.

JUDGMENT

Kabui, J: This is an application by the Plaintiff for a motion for judgment following a judgment in default of appearance and defence signed by the Registrar on 21^st //2003. A statement of defence was later filed by the 1^st Defendant on 26^th August, 2003. The 1^st Defendant has not attempted to set aside the judgment in default made against him by the Registrar on that date.

The facts as disclosed in the Plaintiff’s statement of claim are these. The 1^st Defendant is Mahlon Toito’ona, an employee of Ela Motors. Upon enquiry by the Plaintiff, the 1^st Defendant undertook to place an order for a 15-seater bus to Ela Motors in Papua New Guinea. The 1^st Defendant told the Plaintiff that the Plaintiff would need to pay the sum of $89,000.00 before the order could be made. The 1^st Defendant told the Plaintiff that he, the 1^st Defendant, would have to arrange for a telegraphic transfer of the money into the Ela Motors account in Papua New Guinea at the Bank of the South Pacific through the A.N.Z. Bank in Honiara. The Plaintiff gave to the ^{2nd and 3rd} Defendants a sum of $14,050.00 on 10^th January, 2003. On the 14^th January, 2003, the Plaintiff again gave to the 2^nd and 3^rd Defendants the sum of 40,000.00 at the A.N.Z. Bank premises. The Plaintiff gave the last sum of $35,000.00 on the 15^th January, 2003 at the A.N.Z. Bank premises. The Plaintiff had waited outside the A.N.Z. Bank on the advice of 2^nd and 3^rd Defendants on each of the three occasions he gave the money to the 2^nd and 3^rd Defendants. The 2^nd Defendant never ordered the bus and the total sum of $89,050.00 has not been accounted for by the 2^nd and 3^rd Defendants to date. The Plaintiff thereafter filed a Writ of Summons and a Statement of Claim for the recovery of the total sum of $89,050.00 from all the Defendants cited in that Writ of Summons. The Defendants having failed to appear and to file any defence within the prescribed times, the Registrar made a default judgment against the Defendants as stated above.

The Law.

From the above facts, it would seem that the 1^st, 2^nd and 3^rd Defendants had committed the offence of conversion, contrary to section 278 of the Penal Code Act (Cap. 26) “the Code.” The offence of false pretence, contrary to section 308 of the Code may have also been committed by the same Defendants. There is no evidence to show that these offences have been investigated by the Police and prosecution has taken place. The position of the court in this sort of case was discussed and stated in Smith and Another v. Selwyn [1914-1915] All ELR 229 (reprint). In that case, the plaintiff was a vocalist singer who had signed a contract to perform at a concert but the defendant having given her poison claiming to be brandy caused her to lose consciousness whereupon the defendant indecently assaulted her resulting in much suffering on her part. The plaintiff filed a civil action claiming damages. The defendant then applied for the dismissal of the action on the ground that the action was an abuse of the court process and the statement of claim did disclose a felony under the Offences against the Person Act, 1861. Master Chitty refused the application, a ruling later affirmed by Lord Coleridge. The defendant appealed to the Court of Appeal. The appeal was allowed on the basis of public policy in that the Court ordered a stay of the proceedings until after criminal proceedings had been taken against the defendant. At page 232 of His Lordship’s judgment, SWINFEN EADY, LJ said-

“...It is now well established that, according to the law of England, where injuries are inflicted on the civil rights of an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter has been prosecuted or a reasonable excuse shown for his non-prosecution..”

His Lordship then cited a series of authorities which said the reason for the rule was public policy. KENNEDY, L.J. and PHILIMORE, L.J. were of the same view as expressed by SWINFEN EADY, L.J. cited above. That case was recently cited and applied in this jurisdiction by Brown, J. in Timo Mike v. Allan Tavake and Commissioner of Police, Civil Case No. 134 of 2003. I will not defy that rule in this case and do otherwise. It may well be that the Plaintiff had reported his complaint to the Police and nothing has been done so far by the Police. If that is the case, I suggest that the Plaintiff go back to the Police and check on the progress of any Police investigation that may have commenced following his report to the Police. If he has not done so, he must do it now. As to what should be done by the courts in this sort of case, His Lordship KENNEDY, L.J. at page 231, said-

“...I think the result of the cases is this, that it is the duty of the court in each instance, to consider whether there should be a stay or not if it is clear that the cause of action arise from a felony...”

Whilst the Plaintiff’s claim is based on contract and negligence, the facts do clearly point to the commission of criminal offences under the Code as stated above. I would order that the present civil proceedings against the Defendants be stayed until criminal proceedings have been taken against 1^st, 2nd, and 3^rd Defendants. Lest the Plaintiff has not reported his complaint to the Police, I direct that the Police investigate this case immediately and do prosecute the Defendants, if the evidence shows a prima facie case against the Defendants. The Plaintiff can be contacted by speaking to Miss Kirsty Raddock of the Public Solicitor’s Office, Honiara, who is his Solicitor.

The Plaintiff however is at liberty to apply on 7 days notice for re-listing or for further order. I order accordingly.

F.O.Kabui, J.
Puisne Judge