Hatilia v Attorney General - Representing the Minister of Commerce, Industries, Labour and Immigration [2012] SBHC 101; HCSI CC 456 of 2011 (16 August 2012)

IN THE HIGH COURT
OF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case no. 456 of 2011

BRENDA HATILIA
The Claimant

-V-

ATTORNEY-GENERAL (
Representing the Minister of Commerce, Industries, Labour and Immigration
The First Defendant

And

ATTORNEY-GENERAL
(Representing the Director of Immigration and their Servants or Agents
The Second Defendant

Hearing: 7 May 2012
Judgment: 16 August 2012

Savenaca Banuve for the Applicant/Defendants
Douglas Hou for the Respondent/Claimant

Palmer CJ:

1. This is an application to strike out pursuant to rule 9.75(c) of the Solomon Islands Courts (Civil Procedure) Rules 2008, ("the Rules") against the claim of the Claimant filed in the High Court on 14 November 2011 for orders inter alia, that the Court issues an order directing the Minister of Commerce, Industries, Labour and Immigration to grant a resident permit to the Claimant. Details of that Claim are more particularized in the Statement of Claim.
   
2. The first and second defendants ("the Applicants") seek an order to have this claim struck out primarily on the grounds of abuse of process. They also submit that the claim should be struck out on the grounds of res judicata.
   

Abuse of process.

3. The Applicants had raised four grounds in support of their application that the claim is an abuse of process. The first and second grounds can be dealt with together as they are interrelated.
   
4. Under the first ground, they say it is premature for the Court to intervene at this point of time as no deportation order had been made against the Claimant's husband pursuant to section 5(3) of the Deportation Act (cap. 58). Under the second ground they say that adequate means of redress is available under the provisions of the Deportation Act and therefore this application is an abuse of the process of Court.
   
5. The Claimant is the wife of Jayantha Arachilage Rajapaksa ("Rajapaksa") who came to Solomon Islands under a work and resident permit to work as Chef of the Taj Mahal Restaurant around 2007. In September 2007 they started seeing each other and on 22nd January 2009 got married at the Central Magistrates' Court.
   
6. Sometime in early 2010, Rajapaksa was terminated from his employment. On 18 May 2010 and 2nd June 2010 respectively, his work and resident permits were subsequently cancelled. Deportation proceedings were commenced thereafter. On 20 December 2010, this Court made orders inter alia to stay proceedings.
   
7. On 7th March 2011 by Gazette Notice, Rajapaksa was declared an undesirable immigrant. He commenced proceedings in Jayantha Arachilage Rajapaksa and Brenda Hatilia v. Attorney-General CC 39 of 2011 to challenge that declaration and was successful. The deportation order of 8 November 2010 issued against him was quashed. His Lordship, Chetwynd J. who heard that case, however pointed out, in paragraph 31 of his judgment, that there was nothing to prohibit the Minister from issuing fresh declarations under section 11(2)(f) of the Immigration (Amendment) Act 1998 and subsequently a deportation order under section 4(d) of the Deportation Act (cap. 58). Section 5 of the Deportation Act provides for a review process under which such order could be objected to by an affected person.
   
8. This case was initiated as a result of a letter from the Director of Immigration dated 24 August 2011 requesting Rajapaksa inter alia to voluntarily leave the country within 14 days, failing which a notice would be facilitated to have him declared an undesirable immigrant and thereafter instituting deportation proceedings against him.
   
9. His wife, Hatilia comes to court to have the process stopped and dismissed citing provisions of the Constitution which she claims protect her fundamental rights as a spouse, to reside with her husband, pursuant to sections 14(1) and 14(3) of the Constitution as read with the "protection of the privacy of her home" in section 3 (c) of the Constitution and her rights and protection against inhuman and degrading treatment, under section 7 of the Constitution. Part (2) of the order for relief cites an order for a resident permit to be issued.
   
10. When the Director of Immigration ("Director") seeks to have someone deported, the process is normally commenced by issuing a letter requesting the affected person to voluntarily leave the country within a period of time. Failing that, the next step is taken. In this case, Rajapaksa's Work, Residence and Visitors Permit had been cancelled by the Director. This paved the way for the commencement of the process for deportation. The subsequent issue of the letter to leave the country voluntarily was merely to give him an opportunity to do so without having recourse to the deportation proceedings. On the other hand, it is understandable also that a person who does not want to do so would stand idly by without seeking measures to challenge the process. That is what the Claimant had done in this case. She says her citizen spouse's rights had been breached and so had taken appropriate legal action to protect or preserve that right. No one can fault her for doing that.
    
11. If on the other hand they decide to wait out the process and challenge it at the next stage, that will occur when he is served with a deportation order under section 5 of the Deportation (Amendment) Act 1999 ("the Amendment Act 1999"). Under section 4 of the Deportation Act (cap. 58) the Minister has power to make a deportation order. Once it has been served on him (section 5(2) of the Amendment Act 1999), he has 7 days within which to apply to the High Court for a review of the order. The decision of the High Court is a final decision. Whichever way he chooses his rights to be heard are equally protected.
    
12. To that extent coming to court by way of alleging Constitutional breaches of his right cannot be regarded as amounting to an abuse of process. He has right to come to court to protect his rights under the Constitution. If granted leave to do so, the deportation proceeding would simply be stayed pending determination of the Constitutional issues.
    

Ground (v) issue of res judicata.

13. Perhaps the main issue of contention in this application for strike out is that of res judicata; that same issues raised in the earlier case, Jayantha Arachilage Rajapaksa and Brenda Hatilia v. Attorney-General[1] CC 39 of 2011("Civil Case 39 of 2011") are now being articulated in this case as well.
    
14. In Civil Case 39 of 2011, there were two Claimants, Rajapaksa and his wife, Brenda Hatilia ("Hatilia"). The claims of Rajapaksa are not relevant for they had been dealt with. He was successful in his application against the earlier deportation proceedings that had been initiated against him. It is the claim of Hatilia in that case that is relevant for our purposes.
    
15. Hatilia's claim was based primarily on alleged breaches of her Constitutional rights under section 7 and 15(2) of the Constitution respectively, that the purported deportation of Rajapaksa amounted to an inhuman and degrading treatment, contravened Article 16(1) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and discriminated against her on the grounds of race and colour. At a later stage, the claim was amended and only the ground under section 7 was pursued.
    
16. In his supporting sworn statement filed 3 May 2012, Mr. Hou pointed out that when the correctness of the pleadings in respect of the Constitutional question was raised at trial, he decided out of convenience to pursue only the judicial review question; he took this course of action as he felt this would expedite his client's case. He says he left the option open for a fresh claim to be pursued later.
    
17. He argues that the principle of res judicata should not apply to this case for the Constitutional issue raised and other new issues were in his opinion never finally determined by the court.
    
18. Mr. Banuve for the Attorney-General on the other disagrees and says the Constitutional issue was actually considered by the Court; this is reflected in the judgment of the Court.
    

Was the Constitutional question raised?

19. In his submissions, Mr. Banuve says that while the objection had been raised in relation to the procedural correctness of the Constitutional remedy sought, he had indicated he would not object to any Constitutional issue being raised in relation to the decision that had been taken and its impact on Hatilia for her claim had been based primarily on the impact of the deportation and alleged infringements of her Constitutional rights. He says he did put forward submissions, though these were brief on this matter.
    
20. I have had the opportunity to consider the material before me on this matter and I am more than satisfied on the balance of probabilities, that this issue was raised and considered by this Court in its judgment. I do not think the decision of the Court could be any clearer.
    
21. At paragraph 32 of the judgment[2], page 12, his Lordship states:
    

"Turning to Ms Halitia's application, there is no suggestion she is going to be deported. Whilst that is quite clear from the pleadings it is a point worth making. Her claim is based on the effect that Mr. Rajapaksa's deportation would have on her, presumably on the basis that she remained in Solomon Islands although that is not said as such. The deportation order having been quashed is there need for the Court to consider the application? The way the claim is framed means the answer to that question is yes."

22. His Lordship posed the question and then answered it in the affirmative, that he was obliged to consider her application. The subsequent paragraphs (33 – 36) confirmed he addressed his mind to her claim.
    
23. He considered the law on the issue of inhuman and degrading treatment as it related to the issue of discrimination under the Citizenship Act (cap. 57), as well as the relevant article on CEDAW, but found no breaches. He also considered that issue as a Constitutional question and though brief, his conclusion was that it did not amount to inhuman and degrading treatment under the Constitution.
    
24. On the argument now put by Mr. Hou that there were other issues under the Constitution that are being raised for the first time, these in my view would be caught under this application for strike out as an abuse of process.
    
25. The gravamen of Ms. Hatilia's claim is that her fundamental rights protected by the Constitution as a spouse had been breached by the actions of the Minister and Director and so while in the first case the only constitutional breach relied on was in terms of her rights under section 7 of the Constitution, which claim is clearly barred, raising other Constitutional provisions and citing other rights do not necessarily raise any new ground for the Court to adjudicate upon. They all relate back to her marital rights as a spouse, which she claims come under Constitutional protection in one form or another.
    
26. In Henderson v. Henderson[3] cited by Counsel for the Defendant, Sir James Wigram V.C. states that except in special circumstances only, the court will not "permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
    
27. Having raised in the earlier claim Constitutional breaches under sections 7 and 15(2) of the Constitution of her rights as a spouse, she could with reasonable diligence have raised those other Constitutional provisions, section 14(1) and (3), and section 3(c). The omission to raise them through negligence, inadvertence or mistake or deliberately, does not amount to special circumstances to bring them within the exception.
    
28. At paragraph 35 of his Lordship's judgment[4], he made comparisons to similar Constitutional rights in some East African Countries (Zimbabwe, Botswana and Malawi) to our section 14 of the Constitution and noted that later cases had found against citizen spouses on the issue of citizen spouse's right to freedom of movement. He also made specific references to sections 14(3)(c), (d), (e) and (f) of the Constitution.
    
29. The issue of not allowing a party to re-litigate a cause of action or issue which not only was clearly part of the subject-matter but which could have been raised or should have been raised, was also referred to in Greenhalgh v. Mallard[5] by Somervell LJ when he said:
    

"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues of facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

30. In this case, the new Constitutional provisions relied on in any event originate from the same citizen spouse rights earlier on pleaded and therefore are clearly part of the same subject-matter of litigation and could have been raised then. It would be an abuse of the process of the court therefore to allow this new proceeding to be started in respect of them.
    
31. In the case of Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd[6] Lord Kilbrandon delivering the judgment of the Privy Council noted similar sentiments:
    

"But there is a wider sense in the which, the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings."

32. I am not satisfied on the material before me that the fact other Constitutional breaches were not expressly raised as part of the earlier action would amount to any special circumstance. While the rights fall under separate Constitutional provisions they all stem from the fundamental relationship of a citizen spouse's rights and therefore should and could have been litigated in the earlier proceeding. The reason given for not raising those other issues in my view is not sufficient to bring this within the exception of special circumstances and therefore an abuse of the process of the court to raise them now.
    
33. The conclusion of the learned judge in paragraph 36 of his judgment seals this question.
    

"For the reasons detailed above the Second Claimant, Ms. Halitia, fails in her claim that the purported deportation of her husband constituted inhuman and degrading treatment. The claim is dismissed."

34. The proper course of action would be an appeal.
    

Ground (iii). Application for leave for a prospective breach of the Constitution has not been sought by the Claimant pursuant to rules 15.11.2 to 15.11.5 of the Solomon Islands Courts (Civil Procedure) Rules 2008.

35. The Respondent argues that this is not necessary as a breach of her rights under the Constitution had already occurred. I do not agree. The breaches complained off are prospective breaches which will occur if the deportation proceedings are implemented. I am satisfied accordingly that leave ought to have been sought under the rules.
    
36. In the circumstances it is not necessary to consider the question whether leave should be granted anyway in view of the ruling of this court in favour of the application to strike out. Ground (iv), that the mandatory order sought would contravene section 18(1)(a) of the Crown Proceedings Act (cap.8) and would exceed the supervisory powers of the Court.
    
37. In view of the decision taken by this court, it would not have been necessary to consider this question but for the submission by Mr. Hou, that the approach taken by this court should now be reviewed in the light of the decision in M v. Home Office[7]. He points out correctly that the law in England now in terms of whether injunctive relief is available against the Crown is that as stated in M. v. Home Office (ibid).
    
38. Lord Woolf who delivered the judgment of the Court with the concurrence of other Law Lords, points out that if a statute places a duty on a specified Minister or official, which creates a cause of action, then there is no reason why an action cannot be brought for breach of statutory duty claiming damages or for an injunction. At page 29 of his judgment, his Lordship states:
    

"But where a duty was imposed by statute for the benefit of the public upon a particular Minister, so that he was under a duty to perform that duty in his official capacity, then orders of prohibition and mandamus were granted regularly against the Minister."

If on the other hand, the duty is placed on the Crown in general, then section 21(2), which is the same as our section 18(2), would prevent injunctive relief being granted.

39. Lord Woolf referred with approval to the case of Reg. v. The Commissioners of Customs and Excise, Ex parte Cook and another[8] per Parker CJ, in which he also acknowledged that mandamus will lie in certain situations.
    

"However, having said that, one moves on to the far more difficult question whether mandamus will lie. It is sometimes said as a general proposition that mandamus will not lie against the Crown or an officer or servant of the Crown. I think we all know in this day and age that as a general proposition is quite untrue. There have been many cases, of which the most recent is Padfield v. Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] A.C. 997 in which a mandamus was issued to a Minister. Indeed, that has always been the case, as can be seen since as long ago as 1850 when in Reg. v. Commissioners of Woods, Forests, Land, Works and Buildings, Ex parte Budge [1850] EngR 697; (1850) 15 Q.B. 761, Sir Frederick Thesiger expressed the proposition in argument in this form, at p. 768 [He said] "whenever a person, whether filling an office under the Crown or not, has a statutory duty towards another person, a mandamus will lie to compel him to perform it."

40. I have had the opportunity to consider the submissions of learned Counsel on this point and especially the case authority of M. v. Home Office (ibid), which clarified the position regarding the availability of injunctive relief against a Minister. The article referred to by Mr. Hou, by the learned Author H.W.R Wade reported in the Law Quarterly Review[9] titled "Injunctive Relief against the Crown and Ministers" I also find to be helpful and illuminating on this subject. That article was written before the M. v. Home Office case and may have contributed towards shaping the mind of the Law Lords in that case, for that decision was consistent with the views expressed in that article by the learned Author.
    
41. I concur with the views of the Court in M. v. Home Office and those expressed by the learned Author H.W.R Wade in his article. The distinctions noted in those documents should clarify what the right approach should be; the distinction between the powers of an Officer of the Crown 0r Servant as opposed to the actions of the Crown which attract the usual Crown's immunities and which the Crown Proceedings Act, retains. I am satisfied that the original position taken by this court in Murphy v. Attorney-General[10] should be reviewed, that injunctive relief is available against a specified Minister or other Official exercising a statutory power.
    

Conclusion.

42. The application for strike out on the ground of abuse of process should be granted with costs.
    

Orders of the Court:

1. Grant orders to strike out the action as an abuse of the process of the Court with costs.
   

The Court.

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^[1]Civil Case 39 of 2011, (22^nd July 2011) per Chetwynd J.
^[2] Jayantha Arachilage Rajapaksa and Brenda Hatilia v. Attorney-General, CC 39 of 2011
^[3](1843) 3 Hare 100
^[4] Jayantha Arachilage Rajapaksa and Brenda Hatilia v. Attorney-General, CC 39 of 2011
^[5] [1947] 2 All ER 255
^[6] [1975] AC 581
^[7] [1994] 1 AC 377; [1993] UKHL 5
^[8] [1970] 1 W.L.R. 450
^[9] (1991) 107 (Jan), 4-10
^[10] [1994] SBHC 75; HCSI-CC 88 of 1994, (unreported judgement dated 29 March 1994)