Moka v Attorney General [2013] SBHC 188; HCSI-CC 98 of 2013 (2 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 98 of 2013

BETWEEN:

RICHARD MOKA
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Police)
First Defendant

AND:

ATTORNEY GENERAL
(Representing the Director of Fisheries)
Second Defendant

DATE OF RULING: 2 December 2013

Ms L Ramo for the Claimant
Ms M Soma for the Defendants

RULING

1. This is an application by the Defendants filed on 3 September 2013 to strike out the Claimant's Amended Claim filed on 3 July 2013, on the ground that the claim discloses no cause of action.
   
2. The Claimant is a native of Lord Howe Island in the Malaita Province. He has a residential premise at Rove Heights in Honiara. On 6 January 2012, the officers of the Defendants acting under a search warrant purported to be issued by the Honiara Central Magistrates' Court on 25 December 2011, entered the premises of the Claimant and seized a total of 1.729 tonnes of beche-de-mer of varying species, the value of which was estimated at SBD1,000,000.00. The beche-de-mer was stored in a storage container at the Central Police Station in Honiara.
   
3. The beche-de-mers were placed in 59 bags at the time when they were confiscated by the Defendants. They were the personal property of the Claimant. He was neither arrested nor charged by the Police in relation to the confiscated beche-de-mer. His solicitor found later, that the search warrant used by the Defendants to search and confiscate his beche-de-mer was not issued by the Central Magistrates' Court. On 25 March 2013, the Claimant and his solicitor went to Central Police Station and only found 20 bags of his beche-de-mer left in the container. The other 39 bags were missing.
   
4. The Defendants said they were acting under law to enter Claimant's premises and confiscate his beche-de-mer. They also contend that this claim should be dismissed as the Claimant had no cause of action.
   
5. The Defendants rely on Regulation 13A of the Fisheries (Amendment) Regulations 2009; sections 37 (i) (d) and 38 (i) (b) (iii) of the Fisheries Act. These provisions provide as follows:
   

Regulation 13A of the Fisheries Amendment Regulations 2009 state:

"13A, A person who catches and retains, sells, exposes for sell, exports or is in possession for export, any beche-de-mer commits an offence and is liable on conviction to a fine not exceeding $100,000 or imprisonment for a term not exceeding 4 months, or both".

Section 37 (1) (d) of the Fisheries Act States:

"For purposes of ascertaining whether there is or has been any contravention of the provisions of this act any authorised officer shall have power to:-

Make such examination, inspection and inquiry as may appear necessary to him concerning any premises, fish processing establishment, vessel or vehicle. In exercise of these powers, the authorised officer may take samples of any fish or fish products, found therein."

Section 38 (1) (b) (iii) states:

"where he has reasonable grounds for believing that an offence against the provisions of this Act has been committed, any authorised officer without a warrant may – seize any fish which he believes have been taken or fish products produced in the commission of such offence."

Section 8 (2) (a) (ii) the constitution states:

"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or contravention of this section.

(a).....................

(i) .....................

(ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the Law.

6. Further, a principle of public policy is that courts will not assist a plaintiff who has been guilty of illegal and (or immoral) conduct of which the courts should take notice......"
   
7. In knight –v- Attorney General [2005] SBHC 6, His Lordship Palmer CJ stated "........it is a fundamental principle of public policy that no man shall profit from an illegal act". His Lordship quoted that in Euro-Dian Ltd –v- Bathhurst, " This principle...rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct which the courts should take notice."
   
8. There is evidence in this case that the Claimant was in possession of the beche-de-mers for sale or export. He was going to do that when the ban imposed by the Government is lifted. The court will not assist the Claimant in this proceeding as he clearly contravened Regulation 13A of the Fisheries Amendment Regulation 2009 as referred to herein. He has no cause of action against the Defendants because he was in breaching the Law. His claim is accordingly dismissed. Order accordingly.
   

THE COURT