Attorney-General v Marine Exports Ltd [2006] SBHC 74; HCSI-CC 42 of 2006 (8 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 42 of 2006

ATTORNEY-GENERAL

-v-

MARINE EXPORTS LIMITED

(Mwanesalua, J.)

Hearing: 4th September 2006
Ruling: 8th September 2006

N. Moshinsky Q.C. and M. Ipo for the Appellant
A. Radclyffe for the Respondent

RULING

Mwanesalua, J: This is an application for leave to appeal against the ruling delivered by Mwanesalua, J on 14 July 2006 under rule 9 of the Court of Appeal Rules, 183 (L.N. 66/83) ("the Rules"). I heard this application for leave to appeal in my capacity as an ex officio judge of the Court of Appeal under Section 85(2)(b) of the Constitution.

FACTS

Civil Case No. 42 of 2006 was filed in the High Court on 3 March 2006. The Marine Exports Limited is the Plaintiff, now the Respondent. The Attorney-General is the Defendant and the Applicant in this application. The Respondent is a company incorporated in Solomon Islands. It had a licence to export dolphins between 28 April 2005 and 31 December 2005. The Respondent signed a contract with an overseas company for the sale of twenty-five live dolphins on 8 June 2005. The sale of the mammals was aborted as the Government imposed a ban on the export of dolphins by regulation called the Fisheries (Prohibition of Export of Dolphins) Regulation 2005. Thus the Respondent seeks compensation for breaches of Sections 3 and 8 of the Constitution; damages for wrongful interference with the Contract for the sale of the dolphins; exemplary damages for oppressive, arbitrary or unconstitutional action by the responsible Government Minister and/or Government servants; and challenged the validity of the Regulation on various grounds in the said Civil Case.

On 12 May 2006, the applicant by way of motion sought, among other things, to stay or dismiss the Respondent’s action on the basis that it discloses no reasonable cause of action and is frivolous and vexatious. By its Ruling on 14 July 2006, this court dismissed that Motion on the basis that the Respondent’s Statement of Claim disclosed cause of action and questions fit to be considered by the Court during the trial of the action.
On 17 July 2006, the applicant filed a summons for the following orders:

"1. Pursuant to Section 11(2)(f) of the Court of Appeal Act (Cap.6) Leave be granted to the Applicant/Defendant to appeal against the Order of Mwanesalua, J made 14th July 2006, dismissing the Applicant/Defendant’s summons dated 10th April 2006 for an order that the Respondent/Plaintiff’s action be stayed or dismissed on the ground that it does not disclose any reasonable cause of action.

2. Costs

3. Such further orders as may be deemed necessary."

DECISION OF THE COURT

The procedure for an application for leave to appeal is provided under Rule 9 of the Rules. Rule 9 provides:

"9. -(1) An application for leave to appeal shall be in Form B and shall State the grounds upon which it is said the leave should be granted.

(2) The conditions precedent on considering an application for leave to appeal shall be, with necessary adoptions, those set out in rules 10, 11 and 12."

It is plain to this court that the Applicant did not comply with sub rule 1 of Rule 9. That is to say, that the Applicant did not "State the grounds upon which it said that leave to appeal should be granted." It will be noted that this requirement is mandatory. The Applicant must state the grounds upon which leave to appeal should be granted. There are good reasons why that must be done. For the purposes of this application, I can point to two reasons. The first is that a party aggrieved by the determination of a single judge may apply to have the matter heard and determined by the full court under subrule 3 of Rule 18 of the Rules. In that situation, the full court would have to have the grounds before it to hear and determine the application for leave to appeal again.

The Second reason relates to the Legal consequences of failing to comply with the provisions of Forms and Regulations. The non-compliance of rules 8 to 12 of the Rules is expressly stated in Rule 13 of the Rules. This Rule is in these terms:

"13. In the event of non-compliance with any of the provisions of rules 8, 9, 10, 11 and 12 or in the event of any security required to be given not being given, or being given in part only, within the time directed or within such extended time as may be allowed, all proceedings in the appeal shall be stayed, unless the Court shall otherwise order and the appeal shall be listed for the next sessions of the Court for a formal order of dismissal."

This is a case where the court could not exercise discretion to grant leave to appeal due to the two reasons which I alluded to in this Ruling. I have read Grape Bay Limited v. Attorney General Burmuda [1999] UK PC 43 (28 October, 1999) cited by the Applicant. In that case the issue on whether the general statement in Section 1 of the Burmuda Constitution is to be a preamble or to have independent force was not determined. In the circumstance, all proceedings in this application for leave to appeal shall be listed for the next sessions of the Court for a formal order of dismissal under Rule 13 of the Rules. I order accordingly. The Respondents costs in this application is to be paid by the Applicant to be taxed if not agreed.

Francis Mwanesalua
Puisne Judge