Sikua v Tran [2013] SBHC 92; HCSI-CC 436 of 2013 (17 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 436 of 2012.

BETWEEN: DEREK SIKUA
Claimant
(LEADER OF THE OFFICAL OPPOSITION)

AND:

NAMSON TRAN
First Defendant

AND:

MINISTER FOR HOME AFFAIRS
Second Defendant

AND:

CITIZENSHIP COMMISSION
Third Defendant

AND:

ATTORNEY GENERAL
Fourth Defendant

Date of Hearing: 17th June, 2013.
Date of Decision: 17th July, 2013.

Mr G. Suri for the Claimant.
Mr J. Sullivan QC and Mr. Lepe for the First Defendant.
Mr R. Firigeni for the Second, Third and Fourth Defendants.

DECISION ON 15 CONFERENCE.

Faukona J: This is a claim for judicial review filed on 21st December, 2012, basically to review the second Defendant's decision awarding the Solomon Islands citizenship to the first Defendant on 9th January, 2002.

2. In the claim for judicial review there ought to be a pre-trial conference under chapter 15 of the Rules to determine four requirements under Rule 15.3.18. The requirements are;

(a) the claimant has an arguable case.

(b) the claimant is directly affected by the subject matter of the claim.

(c) there has been no undue delay in making the claim and

(d) there is no other remedy that resolve the matter fully and directly.

Background Facts:

3. The first Defendant is a Vietnamese by origin and birth. Later migrated to Vanuatu. Subsequently he acquired Ni- Vanuatu citizenship. In or about 1995 he came to Solomon Islands to work. He was issued with a residence permit on 4th June 1999 and work permit on 21st March, 2001, or 24th April 2001, or thereabout.

4. By application dated 9th October, 2001, the first Defendant applied for Solomon Islands Citizenship (naturalization). On 5th November 2001 he was informed of the decision of Citizenship Commission that his application was suspended for reason that ten years ordinary residence requirement for male was not fulfilled. On 6th November, 2001, the first Defendant appealed to the Minister of Home and Ecclesiastical Affairs against the Commission's decision. On 8th November, 2001 by letter the Minister for Home and Ecclesiastical Affairs approved the first Defendant's application and on 9th January, 2002, he was formally granted with Certificate of Naturalization. Subsequent to obtaining citizenship, he was issued with Solomon Islands Passport No. 036737 issued on 5th March 2002.

5. In 2010, National General Election the first Defendant contested the West Honiara Constituency seat, which he won and as a result of which he became a Member of Parliament of West-Honiara Constituency.

6. The Claimant also won the 2010 National General Election representing North East Guadalcanal Constituency, and became a Member of Parliament for that Constituency. He was later elected as a leader of the Official Opposition.

7. The Claimant and other Members of Parliament in the official Opposition group were aggrieved by the first Defendant's election into Parliament which alleged to have contravened the Citizenship Act and sections 48 and 55 (1) (a) of the constitution.

8. The first Defendant's sitting and participation in National Parliament directly affects the interest of the claimant and members of the official Opposition Group, in terms of numerical strength and solidarity, and who above all things would yield to maintain Parliamentary stability and democracy (majority rule).

9. From those grievances that this case was instituted.

Relevant Provisions of the Law:

10. Section 7 (1) of the Citizenship Act provides a person of full age and full capacity may apply in a prescribe manner to the Commission to be a naturalized citizen. Subsection (2) (a) among others requires that the applicant on the date of application has been an ordinarily resident in Solomon Islands for ten years. Having satisfied the conditions under S. 7 (2)(a), the Commission may either grant the application or refuse it.

11. Regulation 2 of the Citizenship (Appeal Procedures) Regulation 2000, provides, any person aggrieved by any decision of the Commission may appeal to the Minister within thirty days. Regulations 3 to 10 (1) sets out requirements and procedures to comply with in filing an appeal. Regulation 10 (2) the Minister shall either uphold or dismiss the appeal however, such decision shall be final and not subject to further appeal in any Court.

12. Once the application is approved, or appeal upheld, the applicant is granted a certificate of citizenship and is issued with a Solomon Islands passport pursuant to Section 4 of the Passport Act. Having acquired citizenship and a passport was issued; the person is qualified for election as a member of Parliament and is entitled to be registered as an elector pursuant to Sections 48 and 55(1)(a) of the Constitution.

13. The purpose of this hearing is to satisfy the requirements under Rule 15.3.18. Rule 15.3.16 calls for as soon as practicable after defence has been filed and served the Court must call a conference to decide those four issues. It appears that this process is intended to fast track the case. It does not necessarily require whether pleading has been commenced or not. It also ensures the Claimant prosecutes a worthwhile case and not to abuse Court processes.

Arguable case:

14. The major arguable issue advance by Mr Suri is the manner in which the appeal to the Minister was filed and whether the procedures were complied with, and whether the Minister complied with the requirements of law that surrounds the administration of the appeal. Mr Suri quotes all relevant provisions which were not complied with including S. 7 (2) of the Citizenship Act, Section 12 of the Citizenship (Amendment) Act 1997 (No.2 of 1997), The Citizenship (Appeal Procedures) Regulation 2000 and the Passport Act section 4, and the Constitution Sections 48 and 55 (1) (a).

15. He sums up by submitting that the 1st Defendant was not entitled to become a member of Parliament because he was not lawfully qualified to obtain Solomon Islands citizenship and hence not entitled to sit in Parliament and enjoy the same privileges, rights and benefits as the Claimant.

16. Mr Sullivan QC argues that the 1st Defendant has the right of appeal under the law. There is no contention that the 1st Defendant resided in Solomon Islands for less than ten years at the time of his application.

17. From those variable views, the issue is indeed an arguable one, which ought to be litigated in trial. It's a major issue which relevant provisions of the law will be interpreted and applied.

18. Another contentious issue is the argument that the appeal to the Minister for Home and Ecclesiastical Affaires, pursuant to section 7(2) of the Citizenship Act, should be based on the Citizenship Commission's grant or refusal of the application. However, Regulation 2 of the Citizenship (Appeal Procedure) Regulation 2000 says that any person aggrieved by any decision of the Commission may appeal to the Minister within thirty days. There may be different opinions as to how the law should be applied and which should take precedent and prevail. It is a clear arguable issue.

19. Another issue is in relation to the hardship the first Defendant will encounter should he be deported from Solomon Islands. Over the years, he had been resided in Solomon Islands, and had married to a Solomon Islander. He had two issues out of that relationship. The two children were born in Solomon Islands and are Solomon Islands citizens.

20. Mr Suri argues that should the Minister's decision is reviewed the first Defendant is eligible to reapply to become citizen. By now, he should be qualified. He had been residing in Solomon Islander for more than ten years.

21. However, I doubted in my mind of the genuineness of the office of leader of opposition. Two sworn statements sworn by Mr Maepio and Mr Kemakeza reflected serious allegations which the office of the leader of opposition could have viewed that the first Defendant may not be a wanted person in Solomon Islands.

22. I could almost tell the position the office of the leader of opposition take, though not necessary to speculate. In any event, it is an issue that can be considered when the decision by the Minister is actually litigated and scrutinized.

I find there is an arguable case.

Standing/Sufficient interest:

23. The Defendants are arguing two major obstacles in the Claimant's case. They are standing and statute bar. From the Defendant's view should the Court accepts their argument the whole entire Claimant's case be dismissed on those two grounds.

24. Locus standi or standing or sufficient interest (latest term) has never been intended to be an arguable issue for the claimant's case or any claimant for that matter. It is recognised that by law an aggrieved party is entitled and afforded privilege to institute a case in Court and seek remedy for the wrong done of which he is affected. Nevertheless, circumstances permit where law or the rules provide specifically. In this case, Rule 15.3.18 (b) articulates that the Court has to be satisfied that the Claimant is directly affected by the subject matter of the claim. In other words, it has to be established that having been directly affected by the Minister's decision he has the standing to come to Court and sought remedy.

25. Over the years, law has developed and reforms were made. In January 1978, a new Rule of the Supreme Court in England came into force requiring an applicant for judicial review of administrative action to show sufficient interest before the court will grant leave to proceed. That is a step forward from the traditional word of locus standi. In any case, there are some limited differences between both. Rather than relying on rights to come to Court; there has to be established interest, which is not an ordinary interest, but sufficient interest.

26. Sir William Wade in his book on Administrative Law (1998, 6th Edition) quote a sweeping passage from R V Inland Revenue Commission, ex-p. National Federation of self-employed and Small Business Ltd,[1] in particular the words of Lord Wilberforce who said,

"In other words, the question of sufficient interest cannot, in such case, be considered in the abstract, or as an isolated point. It must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates.

Further Lord Roskill reiterate, that the ultimate analysis is discretionary, and the exercise of that discretion and the determination of sufficiency or of the applicant's interest depend not upon one single fact, but upon due appraisal of many different factors revealed by the evidence produced by the parties, few if any will be isolated from the others".

27. What the Court actually said is that it was wrong to treat standing as a preliminary issue for determination independently of the matters complained of. The matter complained of in this case is the award of Solomon Islands citizenship to the 1st Defendant. Was it done in contravention of the law, therefore not entitled to become a member of parliament, and to sit in National Parliament with the Claimant and enjoy the same Parliamentary rights, benefits and privileges?

28. The issue of sufficient interest was pointed out by Lord Denning in the above case. The test is, have they a genuine grievance? Are they genuinely concern? Or are they were busy bees. But a man who is genuinely concern can point objectively, to something that has gone wrong and should be put right. He should be heard. This test was adopted in the case of Kenilorea V Attorney-General.[2]

29. Lord Denning further reiterated that the expression sufficient interest, on the face of it, be left to the court exercise its unfettered discretion to decide in its own judgment, in particular the circumstances before it. That has also been affirmed by Lord Diplock in the same case.

30 The principle of sufficient legal standing also emerged in Somare's case in PNG challenging the constitutionality of a motion and subsequent Act approving sending PNG troops to Vanuatu. As a leader of opposition though there was no specified authority under section 18 (1) of the constitution, nor standing was referred to in Section 23 (2) to invoke the power of the Supreme Court. The majority ruled that the applicant did have standing under S. 18 (1) of the Constitution. That as a member of Parliament he belongs to the governmental body, which has been invested with the power of law making by the constitution. Furthermore, as Mr Somare is a citizen he has the standing where a question of non-compliance with the constitution by the Parliament is involved.

31. Reference to standing by each citizen is a sweeping statement. It includes all Solomon Islands citizens, be it a member of parliament, naturalised citizen or ordinary citizen. All have standing to question in court non-compliance by administrative decision makers to either provisions of the constitution or Acts of Parliament.

32. The cases of Mr Somare and Sir Peter Kenilorea dealt with constitutional questions. However, Daly CJ in Kenilorea's case quoted the preamble of the constitution, which clearly states that all power in Solomon Islands belongs to its people and is exercised on their behalf by the legislature, the executive and the judiciary established by the Constitution. He refers to the case of Gouriet that the rights of the public are vested in the Crown. In Solomon Islands, the power is vested in the people. For this reason, the authorities dealing with the relator actions and the powers of the Attorney-General as an Officer of the Crown are not strictly applicable in Solomon Islands.

33. Who then has the right to apply for remedies? It is not contended that the allegations against the Minister in performing his functions, if proven, is a public wrong. From Sir William's book there is a shift from the traditional practice that only the Attorney-General could sue on behalf of the public to prevent public wrongs. That has not been the case, in effect, therefore, a citizen's action, or action popularise is in principle allowable in suitable cases. In this case is a suitable case in the circumstance.

34. The situation in Solomon Islands is different where the Attorney-General cannot represent public interest but actions by Ministers of the Crown, government officials and authorities. I do not seem to agree that the Attorney-General's chambers is defending political rulers thus prompted increase unrestrained corruptions. It is how the Attorney-General's Chamber was structured with designated area of responsibilities. The office of the Solicitor General could properly have vested with such functions. It would be incorrect to label as defending corruptible act when the Claimant himself sued the Attorney-General in his capacity as a Defendant. Representing government Ministers, Officials and other authorities is a normal capacity vested in the Attorney-General's chamber. The reason at that time of alleged incident was that the Minister was performing his functions provided under the relevant Acts and Rules.

When does the interest arise:

35. The authorities finally put to rest that citizens interest lies in the effective maintenance of the law, which he has entrusted power to the organs of the government including executive. That power belongs to each and every citizen. If it is abused a citizen should have a general standing to sought remedies.

36. Apparently the cases Mr Suri refers to are contraventions of the supreme law that is the constitution. However, the liberalisation effect should include other statutes as well which also gave power to the organs of the government.

37. In this case, the interest of a citizen, including the Claimant, commenced on the date alleged abuse of process was done, that was 9th January, 2002. Consequently, no citizen had raised any concern until the 1st Defendant was elected to National Parliament on the 4th August, 2010. Even so, no one expressed any concern until the Claimant learned from the Chairman of citizenship commission's letter dated 8th November, 2012. Following that was the filing of this suit on 21st December, 2012.

38. The Claimant's submissions is with no doubt contain and premise on political motivation. The battle for numerical strength in the National Parliament gave rise to a search in order to topple the first Defendant, grounded on Sections 48 and 55(1) of the Constitution, purposely to disqualify him for acquiring invalid citizenship.

39. Whether this case was motivated for political expediency, or for other purposes; Chetwynd J in the case of Wale V Attorney-General said,

"Can Mr Wale say if Mr Lusibae is sitting as a member of Parliament when he is not entitled to do so that is a matter which directly affects him as a member of Parliament. I believe he can. It is a situation that not only affects Parliament in general but also each individual member. It matters little which side of the House Mr Wale sits on. It matters little that his application is said to be politically motivated. What matters is whether he is directly affected by the

Speakers ruling allowing Mr Lusibaea to continue sitting. If Mr Lusibaea is not entitled to sit as a member then his continued participation in the business of Parliament must directly affected Mr Wale as a member duly elected and duly entitled to sit".

40. The facts of this case are quite different from that of Mr Wale. In that the grounds upon which if proof to disqualify the first Defendant from being entitled to sit as a member of Parliament has yet to be determined. Meantime they are still in the nature of allegations. In the above case, Mr Lusibaea had been already convicted. It is my humble view that the allegations are yet to be tested, and must be tested. To say that the first Defendant's continued participation in Parliament business directly affects the Claimant is quite remote. This case may not assist the Claimant on the point that he was affected by the continuous sitting and participation by the first Defendant. However, it does make a point that political motivation is a non-issue in any such circumstances.

Will the Claimant's interest continue:

41. Political battle for numerical strength in the National Parliament is a motivated element and continues for the natural life of the Parliament. Would the Claimant's motivation and interest go along way even beyond the next National General elections in 2014, if this case is not heard by then? This question will answer the interest, genuineness and the motive of this case. I don't have the answer, but is a responsibility guaranteed by law that all citizens have general standing to come to Court and sought remedy despite political motivation.

42. With all that I have discussed above, it is my opinion Dr Sikua as a citizen of Solomon Islands, has the standing where a question on non-compliance with a statute was allegedly done by the Minister and was involved.

Undue Delay: Statute bar:

43. On 8th November 2001, the Minister, by his letter approved the appeal lodged by the 1st Defendant, and was awarded Solomon Islands citizenship on 9th January 2002. Sometimes after or on 8th November, 2012 the Claimant became aware of the 1st Defendant's noncompliance with the Citizenship Act. On 21st December 2012, he instituted this claim for judicial review.

44. From 9th January 2002 to 21st December, 2012, is about ten years and eleven months. Has the Claimant statute barred from filing this action. There are arguments that the real cause of action commenced when 1st Defendant was awarded citizenships on 9/1/2002, everything else is consequential. That was the date the cause of action accrued.

45. Section 5 of the Limitation Act clearly expresses that no action be brought, nor arbitration commence after the expiration of six years from the date, which the cause of action accrue. And S.17 states that a cause of action shall deem to accrue on the date which the right to relief sought by an action first arise. However, where cause of action is founded on continuing wrong a fresh cause of action shall accrue on each day of the wrong. Sections 5 and 17 are very simple and clear.

46. If the appeal lodged by the 1st Defendant did not comply with S. 12 of Citizenship (Amendment) Act 1997, which was not against the ground of refusal by the Commission, and has to be on proper form according to Regulation 200, and the rest of the formal requirements were not complied with, then would that be labelled as continuing wrong which were not unveil, and was revealed almost eleven years later. In my view, the wrong even at this stage is still undetermined. It is still remain an allegation. In fact, that is the core issue litigated in this case. At this stage, I am not determining any arguable issue. However, I agree, a wrong if there be, was not unveiled until almost eleven years later, hence filing of this action.

47. If the determination by the Minister was succumbed by noncompliance with the relevant Acts and Regulations, then is it done by fraud? After almost eleven years, was the wrong concealed deliberately from the Claimant or any citizen who has the standing or sufficient interest. Or was neither the Minister nor his office mistake in complying with the formal processes. These questions do not have direct answers. It has to be answered when the action and determination by the Minister is critically analysed through the formal judicial analysis of the law.

48. The truth of the matter as argued includes unconscionable blameworthy act, which require arbitration, which shall not begin until the Claimant, has discovered fraud, concealment and mistake.

49. I do not think that any fraud or mistake was concealed until it was discovered by the Claimant. The fact of reality is that there is no legislative framework or mechanism to cater and promote transparency and accountability, in particular in relation to any application for citizenship or appeal to the responsible Minister. My opinion is that such an application, or appeal must be published for public scrutiny. In doing so, allowing citizens realised their rights to come to court and seek remedy, if there is noncompliance with any provisions of the law within the time limit. Should he fail to seek remedy he is time barred. Meantime there is nothing in place. Citizens of this country are not aware and well versed with what Ministers of the Crown are doing. I guess even the office of the Attorney General is not aware of it. This is not an alleged wrong that was done to an individual, which he is directly affected, and knows of the wrong from the start. In such situation he can't seek remedy six years after when the cause of action first accrued.

50. In this case, the Claimant discovered the alleged non-compliance with the law by the Minister on 8th November, 2012 and instituted this case on 21st December 2012. By section 17 of the Limitation Act, the cause of action accrues on the date the right to relief sought by the action first arise. In this case, the causes of action first arise on the 8th November, 2012. I must therefore rule that Claimant is not time barred in coming to court and file this case seeking remedy.

51. With respect to two sworn statements, sworn by Mr Wayne Maepio and Mr Mark Kemakeza filed on 15/3/2013 of which I have the privilege of reading them. The content of those sworn statements are allegation of which do not associate with the Claimant's claim for judicial review. They may form part of another case, may be, for corruption and financial inducement of members of Parliament. I do not consider those as relevant and appropriate in considering the Claimant's case. Therefore those sworn statements be struck out and I do so accordingly.

52. As I have mentioned at the outset that pleadings have just started and there are many issues require or ought to be pleaded.

53. In all that, I say I am satisfied that the Claimant has fulfilled the requirements of Rule 15.3.18.

54. Case should proceed to next stage and orders for directions ought to be in place. No order as to costs as this is a requirement under the Rules for the court to conduct the conference.

The Curt.

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^[1] [1981] UK 4L 2[1981] UKHL 2; , [1982] AC 617 [09 April 1981].
^[2] [1983] SBHC 30; (1983) SILR 65 (11 April 1983).